Talmud - Mas. Baba Bathra 26a
[must the house shake to constitute damage]? - Enough to make the lid of a pitcher rattle.1 When the people in the house of Bar Marion the son of Rabin used to beat flax, the dust used to fly about and annoy people. They appealed to Rabina. He said to them: When we say that R. Jose admits that a man is responsible for damage of which he is the cause, this applies only to the case where he himself sets the cause of the damage in motion. Here it is the wind which carries the dust about, [and therefore they are not liable]. Mar, son of R. Ashi, strongly objected to this, saying: How do these man differ from a man winnowing [on Sabbath] when the wind carries the chaff further?2 - The case was stated before Meremar. and he said: This is in fact on all fours with that of the man winnowing on Sabbath when the wind comes and helps him.3 And how does Rabina4 differentiate this case from that of the spark flying from the smith's hammer and doing damage, for which the smith is responsible?5 - [He could reply that] the smith is glad to see the spark fly out,6 but here the people beating the flax do not want the dust to fly about.
MISHNAH. A MAN SHOULD NOT PLANT A TREE [IN HIS OWN FIELD] CLOSE TO HIS NEIGHBOUR'S FIELD7 UNLESS HE KEEPS IT AT A DISTANCE OF FOUR CUBITS; THIS APPLIES BOTH TO A VINE AND TO ALL OTHER TREES. IF THERE IS A FENCE BETWEEN THE TWO FIELDS, EACH MAY PLANT CLOSE UP TO THE FENCE ON HIS OWN SIDE.8 IF THE ROOTS [OF ONE MAN'S TREE] SPREAD INTO HIS NEIGHBOUR'S FIELD, [THE LATTER] CAN CUT THEM AWAY TO A DEPTH OF THREE HANDBREADTHS SO THAT THEY SHOULD NOT IMPEDE THE PLOUGH. IF HE DIGS A PIT, DITCH, OR CAVE, HE CAN CUT RIGHT DOWN [TO ANY DEPTH]. AND THE WOOD BELONGS TO HIM.9
GEMARA. A Tannahas taught: The four cubits here mentioned are to allow space for the work of the vineyard.10 Samuel said: This rule was only laid down for Eretz Yisrael; in Babylonia two cubits are sufficient.11 This is also stated in a Baraitha: 'A man should not plant a tree nearer than two cubits to his neighbour's field.' But does not our Mishnah say four? - It must be therefore as Samuel has explained. This argument is also stated in the form of a contradiction [which is afterwards reconciled, thus]: Our Mishnah says: A MAN SHOULD NOT PLANT A TREE CLOSE TO HIS NEIGHBOUR'S FIELD UNLESS HE KEEPS IT AT A DISTANCE OF FOUR CUBITS. But does not a Baraitha say two cubits? - Said Samuel: There is no contradiction. The Mishnah refers to Eretz Yisrael, the Baraitha to Babylon.12
Raba, son of R. Hanan, had some date trees adjoining a vineyard of R. Joseph. and birds used to roost on the date trees and fly down and damage the vines. So Raba, son of R. Hanan, told R. Joseph to cut down his date trees. Said the latter: But I have kept them [four cubits] away? This, replied the other, applies only to other trees, but for vines we require more. But does not our Mishnah say that THIS APPLIES BOTH TO VINES AND TO ALL OTHER TREES? Said he:13 This is so where there are other trees or vines on both sides,14 but where there are other trees on one side and vines on the other a greater space is required.15 Said R. Joseph: I will not cut them down, because Rab has said that it is forbidden to cut down a date tree which bears a kab of dates, and R. Hanina has said, 'My son Shikhath only died because he cut down a date tree before it was dead.'16 You, Sir, can cut them down if you like.
R. Papa had some date trees close to the field of R. Huna the son of R. Joshua. [One day] he found him17 digging and cutting out the roots. What [do you mean by] this? he said to him. He replied: We learnt: IF THE ROOTS SPREAD INTO HIS NEIGHBOUR'S FIELD, [THE LATTER] MAY CUT THEM AWAY TO A DEPTH OF THREE HANDBREADTHS SO THAT THEY SHOULD NOT IMPEDE THE PLOUGH. Said the other: [The Mishnah] only [says] three, but you. Sir, are going deeper. He replied: I am digging for pits. ditches, and caves, In regard to which we learnt: IF HE DIGS A PIT, DITCH, OR CAVE, HE CAN CUT RIGHT DOWN AND THE WOOD BELONGS TO HIM. Said R. Papa [subsequently]: I tried all kinds of argument with him, but I could not convince him
(1) According to others, 'as much as the lid shakes when the jar is held in the hands.'
(2) If a man winnows on Sabbath and the wind carries the chaff more than four cubits, he breaks the law regarding throwing on Sabbath.
(3) And therefore the flax-beating could be stopped.
(4) Who may say that a principle applying to a Sabbath prohibition does not necessarily apply to a trespass against property.
(5) This being also a trespass against property rendering the smith liable although the spark is carried by the wind.
(6) So that it shall not damage his own smithy.
(7) Whether a corn field or an orchard.
(8) Lit., 'This one may plant it close to the fence on this side, and this one etc.' because then there is no danger of Kilayim. V. supra 18a.
(9) The Gemara discusses which one is meant.
(10) I.e., so that he can plough under his vine without encroaching on his neighbour's field.
(11) Because a shorter plough was used there.
(12) Lit., 'here in Eretz Yisrael, here in Babylon.'
(14) Lit., 'a tree for a tree, and vines for vines, but a tree for vines, etc.'
(15) Tosaf. points out that R. Joseph could be held responsible only if he had planted the date trees as saplings, but not if they had grown from date stones.
(16) Lit., not its time.'
(17) Lit., 'he went and found him.'
Talmud - Mas. Baba Bathra 26b
till I adduced the dictum of Rab Judah: 'A strip of land over which the public has established a right of way must not be obstructed.'1 After he [R. Papa] had left him, he [R. Huna] said: Why did I not answer him, '[The prescriptive right of a tree is only]2 within sixteen cubits [from the trunk].3 [but I am cutting at a distance of]4 more than sixteen cubits'?
IF HE DIGS A PIT, DITCH OR CAVE HE CAN CUT RIGHT DOWN [TO ANY DEPTH] AND THE WOOD BELONGS TO HIM. Jacob of Hadayab5 put the question to R. Hisda: To whom does the wood belong? - He replied: We [can] learn the answer [from the following Mishnah]: If the roots of a tree belonging to a layman spread into a field belonging to the Sanctuary, they may not be used [by a layman], but their use does not involve a trespass.6 If now you say that the roots follow the tree, then there is a good reason why the use of them does not involve a trespass. But if you say that they take their character from the soil in which they are found, why is a trespass not involved? - What then [will you conclude] - that the tree is the decisive factor?7 [If so], let us see what follows:8 If the roots of a tree belonging to the Sanctuary spread into the field of a layman, they must not be used, but their use does not involve a trespass. Now if the tree is the decisive factor, why is no trespass involved? In fact, [this Mishnah, I should say,] tells us nothing about the question in hand, because it is concerned with 'a subsequent growth',9 and it holds that the law of trespass does not apply to 'subsequent growth'.10 Rabina replied that there is no contradiction [although in the first case the tree is the decisive factor and not in the second]. [In the first case we suppose]11 the roots to be within sixteen cubits of the tree, [and in the second case]11 beyond sixteen cubits from it.
'Ulla said: A tree which is nearer than sixteen cubits to the boundary of a neighbour's field is a robber, and the offering of first fruits should not be brought from it.12 From whence does 'Ulla derive this idea? Shall we say from [the following Mishnah] which we learnt: 'If ten shoots are planted at [equal] intervals in a beth se'ah,13 then the whole of the beth seah may be ploughed up to New Year [of the Sabbatical year]'?14 [This cannot be.] For what is the total area occupied? - Two thousand five hundred cubits. How much is that for each tree? - Two hundred and fifty cubits. Now, this is less than the space mentioned by 'Ulla.15 Can it be then from [the following Mishnah] which we learnt: 'If there are in a field three trees belonging to three different men, they can be combined [to place the field in the category of a plantation field],16 and the whole
(1) Because the public has acquired a prescriptive right of way over it. I also have a prescriptive right to let my tree stand where it is.
(2) Lit., 'here.'
(3) Because up to that distance the roots suck from the soil, though they actually spread 25 cubits. V. infra.
(4) Lit., 'here'.
(6) (Me'i. 13b). Heb. me'ilah, מעילה the technical name for the improper use of holy things by laymen (as distinct from the Sanctuary). V. Lev. V. 15.
(7) And the wood in this case belongs to the owner of the tree.
(8) Lit., 'read the end (clause)' in the Mishnah just quoted.
(9) E.g.. the roots, which spread after the tree was consecrated.
(10) V. Pes. 66b.
(11) Lit. 'here'.
(12) Because it says. thou shalt take the first of all the fruit of the ground which thou bringest from thy land (Deut. XXVI, 2.)
(13) An area of fifty cubits by fifty.
(14) (Sheb. I, 6). Because the whole of the area is required for the nourishment of the trees and the ploughing is therefore purely for their benefit, and not for the purpose of sowing.
(15) Who says that the tree sucks from an area with a radius of 26 cubits, which would be much more than 250 cubits.
(16) A 'plantation field' was allowed to be ploughed up to the Feast of Weeks preceding the Sabbatical year, but a cornfield only up to the Passover. If the three trees are not combined, only the space required for each one can be ploughed up to the Feast of Weeks.
Talmud - Mas. Baba Bathra 27a
beth se'ah may be ploughed in virtue of them.' What is the total area of the field? - Two thousand five hundred cubits. How much is that for each tree? - Eight hundred and thirty-three and a third. 'Ulla still claims more for his tree!1 - [We must suppose that] 'Ulla did not give an exact figure. [Is that so?] We may presume that an authority does not give an exact figure where by so doing he makes the law more stringent. But can I say that he does so where he makes the law less stringent?2 - You are assuming that 'Ulla was thinking of a square. In reality he was thinking of a circle. Let us see. The area of a square exceeds that of the [inscribed] circle by a quarter. Hence there remains for [the circle from which 'Ulla's tree sucks] seven hundred and sixty-eight cubits.3 But the space allowed [by the Mishnah] is still half a cubit more [in length]?4 - That is where 'Ulla was not exact, and he thereby made the law more stringent. Come and hear: 'If a man buys a tree and the soil around, he brings first-fruits from it and makes the declaration.5 ['Soil' means any quantity,] does it not, however small?6 - No: it must be sixteen cubits.
Come and hear: If a man buys two trees in another man's field, he brings first-fruits from them but does not make the declaration. [We infer] from this that if he buys three he does make the declaration. And any quantity of soil is sufficient, is it not?7 - No; here too it must be sixteen cubits.
Come and hear: R. Akiba says: 'The smallest piece of landed property is subject to the rule of the corner8 and first-fruits. and a prosbul9
(1) 1024 cubits (reckoning 32 square).
(2) As 'Ulla does, by exempting from the obligation of first fruits a tree which is really liable to it.
(3) = three quarters of 1024.
(4) The area of the circle allowed by the Mishnah for each tree is 833 1/3 cubits. The square in which this is inscribed would (according to the reckoning of the Talmud) have an area of 1111 1/9 cubits. The side of such a square would he 33.3 cubits. Hence the radius of the area from which the tree sucks would be practically 16 2/3 cubits. (Rabbenu Tam proposed to read here 'two-thirds' instead of 'one-half'.)
(5) V. Deut. XXVI. 3ff.
(6) Which would show that a tree sucks only from a very narrow space.
(7) The rule is that if a man buys three trees in a field he acquires the soil under them unless the contrary is specified. V. infra 81a.
(8) פאה V. Lev. XIX, 9.
(9) V. Glos.
Talmud - Mas. Baba Bathra 27b
can be made out on the strength of it, and movables can be acquired by means of it'?1 - Here we are speaking of [the first-fruits of] wheat. This is indicated also by the expression in the Mishnah 'the very smallest'.2 Come and hear: If a tree is partly in Eretz Yisrael and partly outside of Eretz Yisrael,3 fruit subject to tithe and fruit not subject to tithe are mixed up in it. This is the opinion of Rabbi. Rabban Simeon b. Gamaliel, however, says that that which grows where the obligation extends [i.e.,in Eretz Yisrael] is liable and that which grows where the obligation does not extend [i.e.. outside Eretz Yisrael] is not liable.' The difference of opinion between them only consists in this, does it not, that the latter holds that we can decide retrospectively [which fruit belongs to which root] and the former holds that we cannot, but both agree that anything which grows where the obligation does not extend is not liable?4 - No. We here deal with the case where the roots are divided by a hard rock. If so, what is the reason of Rabbi [for declaring the two kinds to be mixed together]? Because they mix again higher up. Wherein then lies the ground of the difference between Rabbi and Rabban Simeon? - The former holds that the air mixes the saps [though coming from separate roots], and the latter holds that each remains separate.5
And must the tree be kept sixteen cubits from the boundary and no more? Have we not learnt that 'a tree must be kept a distance of twenty-five cubits from a pit'?6 - Abaye replied: Though the roots spread much further, they only exhaust the soil up to a distance of sixteen cubits, no more. When R. Dimi came,7 he reported that Resh Lakish had asked R. Johanan what the ruling was regarding a tree situated within sixteen cubits of the boundary, and he had answered: It is a robber, and first-fruits should not be brought from it. When Rabin came he said in the name of R. Johanan: The rule both for a tree close to the boundary of a neighbour's field, and for one which overhangs [another's field], is that the owner brings first-fruits and makes the declaration, since it was on that condition that Joshua gave Israel possession of the land.8
MISHNAH. IF A MAN'S TREE OVERHANGS HIS NEIGHBOUR'S FIELD. THE LATTER MAY CUT AWAY THE BRANCHES TO A HEIGHT SUFFICIENT TO ALLOW HIM TO USE THE OXGOAD OVER THE PLOUGH.9 IF THE TREE IS A CAROB OR SYCAMORE, HE CAN CUT DOWN [ALL THE BRANCHES] PLUMB [WITH THE BOUNDARY].10 IF THE FIELD IS AN IRRIGATED ONE. [THE BRANCHES OF ALL] TREES MAY BE CUT DOWN PLUMB.11 ABBA SAUL SAYS THAT THE BRANCHES OF ANY WILD FRUIT-BEARING TREE12 CAN BE CUT DOWN PLUMB.
GEMARA. The question was raised: Does Abba Saul's statement refer to the first clause in the Mishnah or the second?13 - Come and hear: Abba Saul says, If the field is an irrigated one, the branches of all trees may be cut down plumb, because the shade is injurious to an irrigated field. This shows that his statement refers to the first clause.14 R. Ashi said: The language of [his statement as recorded in] our Mishnah also indicates this, since it states ANY WILD FRUIT-BEARING TREE.15 If this refers to the first clause, the word ANY. . . [TREE] is in place, but if it refers to the second clause, it should say simply 'wild fruit-bearing trees'. This shows that it refers to the first clause.
MISHNAH. IF A TREE OVERHANGS A PUBLIC THOROUGHFARE THE BRANCHES SHOULD BE CUT AWAY TO A HEIGHT SUFFICIENT TO ALLOW A CAMEL TO PASS UNDERNEATH WITH ITS RIDER. R. JUDAH SAYS,. SUFFICIENT FOR A CAMEL LADEN WITH FLAX OR BUNDLES OF VINE-RODS. R. SIMEON SAYS THAT [THE BRANCHES OF] ALL TREES SHOULD BE CUT AWAY PLUMB [WITH THE STREET] TO GUARD AGAINST UNCLEANNESS.
GEMARA. Who is the Tanna [of the Mishnah] who rules that in [making regulations to prevent] damage we consider only conditions as they are at present [and not as they are likely to become in the future]?16 - Resh Lakish replied: This ruling is not a unanimous one, and it follows the opinion of R. Eliezer. For we learnt: 'A cavity must not be made under a public thoroughfare, nor pits, ditches, or caves. R. Eliezer says it is permissible if the covering is sufficient to bear a moving cart laden with stones.'17 R. Johanan said: You may even say that the Rabbis [of that Mishnah] also concur [with the ruling here]. For there they prohibit because the cover may give way unexpectedly, but here every branch can be cut down as it grows.18
R.JUDAH SAYS: A CAMEL LADEN WITH FLAX OR BUNDLES OF VINE-RODS. The question was asked: Which is the higher limit, that of R. Judah or that of the Rabbis?19 - There can be no doubt that the limit of the Rabbis is higher, for if the limit of R. Judah is higher, how do the Rabbis manage with anything that [still] comes within the limit of R. Judah?20 You say then that the limit of the Rabbis is higher. How then will R. Judah manage with something which [still] comes within the limit of the Rabbis?21 - He [i.e. the rider] can bend down and pass underneath. RABBAN SIMEON SAYS:[THE BRANCHES OF] ALL TREES SHOULD BE CUT AWAY PLUMB TO GUARD AGAINST UNCLEANNESS. A Tanna taught [in connection therewith]: 'Because [they can form] a tent over uncleanness.'22 This is self-evident, since we learnt, TO GUARD AGAINST UNCLEANNESS? - If I only had our Mishnah to go by I might say that [what it means is that] a raven may bring uncleanness23 and throw it on the branches, and therefore It is sufficient to thin out the branches.24 Now I know [that this is not sufficient]. [
(1) I.e., the same act which confers ownership of the land can confer ownership of the movables also (Pe'ah III, 6).
(2) Which could not be applied to land on which a tree was planted.
(3) I.e., right on the border.
(4) Even within 16 cubits of the boundary, and we do not say that it sucks from Eretz Yisrael.
(5) Lit., 'this one stands by itself and this one stands by itself.'
(6) Supra 25b.
(7) From Palestine.
(8) Viz., that they should not begrudge one another this liberty.
(9) I.e., to allow him to raise his hand to the full height over the plough while holding the whip; or, 'as far as the handle protrudes over the plough' (Jast.).
(10) Because they throw an excessive shade.
(11) Because the shade is injurious to such a field.
(12) V. supra p. 121, n. 2.
(13) I.e., does he mean that the branches of wild fruit-bearing trees can be cut down plumb in any fields, or that in an irrigated field only the branches of such trees may be cut down plumb, but not of other trees?
(14) And he means that the branches of wild fruit-bearing trees can be cut down plumb anywhere.
(15) I.e., besides the sycamore and carob.
(16) I.e., seeing that the branches will grow again, why not have the whole tree cut down?
(17) In spite of the fact that the covering will in course of time wear out (v. infra 60a).
(18) Lit., 'first, first.'
(19) The representatives of the anonymous opinion cited first in the Mishnah.
(20) Seeing that according to the Rabbis the boughs are to he cut away only enough to allow a camel with its rider to pass under, if a load of flax is higher. how will it go under?
(21) I.e., a camel with its rider.
(22) If any part of a dead body is under the tree, the branches form a tent over it, and all who pass under become unclean.
(23) I.e., any part of a dead body, which communicates defilement to all who pass beneath it.
(24) So that nothing can rest on them. According to another interpretation 'to put scarecrows on the branches' (Jast.).
Talmud - Mas. Baba Bathra 28a
MISHNAH. A PRESUMPTIVE TITLE1 TO HOUSES, PITS, DITCHES AND CAVES, DOVECOTES, BATHS, OLIVE PRESSES, IRRIGATED FIELDS, SLAVES, AND ANYTHING WHICH IS CONTINUALLY PRODUCING2 IS CONFERRED BY THREE YEARS [UNCHALLENGED POSSESSion]3 FROM DAY TO DAY.4 A PRESUMPTIVE TITLE TO A NON-IRRIGATED FIELD IS CONFERRED BY THREE YEARS' POSSESSION NOT RECKONED FROM DAY TO DAY.5 R. ISHMAEL SAYS: IT IS SUFFICIENT TO HAVE THREE MONTHS IN THE FIRST YEAR, THREE MONTHS IN THE LAST AND TWELVE IN THE MIDDLE,6 MAKING EIGHTEEN MONTHS IN ALL. R. AKIBA SAYS: ALL THAT IS REQUIRED IS A MONTH IN THE FIRST, A MONTH IN THE LAST, AND TWELVE MONTHS IN THE MIDDLE, MAKING FOURTEEN MONTHS IN ALL.7 R. ishmael SAYS: THIS REFERS ONLY TO A CORNFIELD,8 BUT IN A FIELD PLANTED WITH TREES,9 IF A MAN HARVESTS HIS GRAPES, GATHERS IN HIS OLIVES, AND CULLS HIS FIGS, THIS COUNTS AS THREE YEARS.10
GEMARA. R. Johanan said: I have heard those who attended at Usha11 reasoning thus: Whence do we derive the rule that a presumptive title is acquired in three years?12 - From the 'goring ox'.13 Just as in the case of the' goring ox', after goring three times14 it passes out of the denomination15 of Tam16 into that of Mu'ad,17 so after a man has cropped18 a field for three years it passes [entirely] out of the possession of the seller and is established in the possession of the buyer.19 It may be objected to this that just as in the case of the goring ox its master does not become liable20 till the fourth goring, so here the property should not become the fixed possession of the holder21 till the end of the fourth year? - How can you compare the two cases.22 There, as soon as the ox has gored three times, it is regarded as Mu'ad
(1) Heb. hazakah, חזקה, which combines the meanings of 'holding' or 'occupation', and 'presumed ownership'. What is meant is a title not supported by documents or witnesses, but based on the mere fact of possession. The English legal term Is usucaption'.
(2) Lit., 'yielding fruits'.
(3) As will be seen later, such possession creates a presumption of ownership only if the possessor pleads at the same time that he came by the object in a lawful manner, e.g., by purchase or gift. If he does not advance this plea, the fact of his years' possession has no legal value.
(4) I.e., from any date in one year to a corresponding date three years later. The reason for this regulation is discussed in the Gemara.
(5) As explained in what follows.
(6) Because some crops are sown in the last three months of the year and some in the first three, and to crop the field at these times is equivalent to possessing it for a year.
(7) For R. Akiba's reason, v. infra 362.
(8) Lit., 'field of white', so called because the corn casts no shade. (Jast.)
(9) Which is also a kind of non.irrigated field.
(10) Even though all three processes are carried out in one year, the idea being that the rightful owner would not permit another to take three crops off his field without protesting.
(11) Usha was a town in Upper Galilee near Tiberias. Here, after the destruction of the Second Temple, the Sanhedrin was established when it left Jabneh, and here too after the war of Bar Cochba a synod was held composed mainly of the pupils of Judah b. Baba. On the question who is meant here by 'those who attended at Usha,' v. infra, p. 141, n. 4.
(12) I.e., Why three precisely?
(13) Lit., 'Mu'ad ox' (v. Glos.). V. Ex. XXI, 29.
(14) This is based on the words of the text, from yesterday and the day before,' which, with to-day, make three; v. B.K 23b.
(15) Here again. the Hebrew word is hazakah, which here has the meaning of 'presumed character'.
(16) Lit., 'innocent', involving the payment of half the damage only. V. Glos.
(17) Lit., 'testified against' and liable to pay for the damage in full.
(18) Lit., 'eaten'.
(19) I.e., so completely that he need no longer retain his title-deeds.
(20) To pay the full damage.
(21) If be can bring no proof of ownership.
(22) Lit., 'so now'
Talmud - Mas. Baba Bathra 28b
. but until it has gored the fourth time there is no reason why the owner should pay, whereas here, as soon as the use of it has been enjoyed for three years, the property becomes the fixed possession of the holder.
Now if this is correct1 [that the law of hazakah is derived from the law of the ox], it would follow that three years' possession would confer a legal title even without a plea [of justification].2 Why then have we learnt3 that possession without a plea of justification does not confer a legal title? - The reason why [we confirm the holder in possession when he pleads justification] is because it is possible that his plea is truthful.4 But if he himself advances no plea, shall we put in a plea for him?5
R. 'Awira brought a strong objection against this analogy [between the field and the ox]. On this principle, he said, a protest made not in the presence of the holder should not be valid,6 after the analogy of the Mu'ad ox; for just as in the case of the Mu'ad ox [the warning] must be given in the presence of the owner, so here the protest should be made in the presence of the holder? - There [in the case of the ox] Scripture says, And it hath been testified to his owner';7 here [in the case of property] 'your friend has a friend, and the friend of your friend has a friend.'8 Now [suppose we accept the ruling] according to R. Meir, who said: 'If there was an interval between the gorings the owner is liable, all the more so then if they followed closely on one another.'9 [On the analogy of this], if a man gathered three crops on one day,as for instance figs [in three stages of ripeness]. this should constitute presumptive right, [should it not]?10 - No; the action must be strictly analogous to the case of the Mu'ad ox. Just as in the case of the Mu'ad ox at the time when the first goring took place there was as yet no second goring, so here at the time when the first fruit is plucked the second must not yet be in existence. But suppose he gathered11 three crops in three days, as of a caperbush,12 should not that confer presumptive right? - In this case also the [second] fruit exists already [when he gathers the first crop] and it merely goes on ripening. But suppose he gathered three crops in thirty days, as of clover13 - should not this confer presumptive right? How exactly do you mean? That it is cropped as it grows? Then this is merely partial eating14 [and not the full eating required to confer presumptive right]. But suppose then that he consumed three crops in three months, as of clover,15 should not this confer presumptive right? - Who is meant by the 'Rabbis who attended Usha'? - R. Ishmael;16 and this actually would be the view of R. Ishmael, as we have learnt: R. ISHMAEL SAYS: THIS REFERS ONLY TO A CORNFIELD, BUT IN A FIELD PLANTED WITH TREES, IF A MAN HARVESTS HIS GRAPES, GATHERS IN HIS OLIVES, AND HARVESTS HIS FIGS, THIS COUNTS AS THREE YEARS. And whence do the Rabbis17 derive the rule [that three years possession confers presumptive right]?-R. Joseph said: They derive it from the Scriptural verse, Men shall buy fields for money and subscribe the deeds and seal them.18 For there the prophet is speaking in the tenth year [of Zedekiah]19 and he warns the people [that they will go into captivity] in the eleventh.20 Said Abaye to him: perhaps he was merely giving a piece of good advice?
(1) Here follows a further objection against the analogy from the goring ox.
(2) E.g., that the holder bought it from the claimant, but has lost the deed. V. infra 41a.
(3) Infra 49a.
(4) Lit., 'as he says now', E.g., if the claimant says, 'You stole it from me,' and the holder says, 'I bought it from you,' the fact that he has had the use of the land for three years creates a presumption that he is speaking the truth.
(5) Hence the fact that a plea of justification is required does not militate against deriving the law of hazakah from that of the ox,
(6) And the rule is that it is valid. V. infra 39a.
(7) Ex. XXI, 29, implying 'in the presence of the owner'.
(8) A popular saying. Someone is bound to tell the holder that the claimant has protested against his occupation of the land, and he will therefore take care not to lose his title-deed.
(9) R. Meir uses this a fortiori argument in support of his view against that of R. Judah who defines a Mu'ad, 'an ox who gored on three successive days but not who gored three times in one day,' v, B.K. 24a.
(10) And this is against all authority.
(11) Lit., 'ate'.
(12) One fruit of which is still very small when another is plucked.
(13) Which is cropped three times in a month.
(14) Lit., 'he merely plucks and eats it.'
(15) Which is plucked up and sown afresh every month, so that all three crops have time to ripen fully.
(16) We do not hear of R. Ishmael after the war of Bether, so he probably attended the Sanhedrin at Usha in the early part of the 2nd century C.E. As R. Johanan was not born till the later part of the century, he could hardly have known R. Ishmael personally. Perhaps we should translate above: 'I heard from those who attended (the Synod) at Usha that (those who attended the Sanhedrin there in the previous generation) used to say, etc.'
(17) Who do not accept it. Ishmael's view that the rule of hazakah is derived from that of the ox.
(18) Jer. XXXII, 44.
(19) V. Ibid. 1.
(20) V. Ibid. XXXIX, 2. As they will thus not have the use of the fields for more than two years, he warns them to be careful of their title-deeds.
Talmud - Mas. Baba Bathra 29a
For if you hold otherwise, what do you make of the verse, Build ye houses and dwell in them, and plant gardens and eat the fruit of them?1 That obviously is a piece of good advice,2 and so here too; the proof is that it says in the same connection, and put them in an earthen vessel that they may continue many days!3 - No, said Raba, [the reason according to the Rabbis is this]: For the first year a man will forgo [his rights to the produce], for two years a man will forgo [his rights], but for a third year no man will forgo his rights. Said Abaye to him: In that case, when the land is restored [to the original owner on claiming it after two years], it should be restored without the produce;4 why then has R. Nahman laid down that both the property and the produce have to be restored?5 - Raba therefore correcting himself said: For the first year a man is not particular about another man usurping his field,6 nor is he particular for the second year, but the third year he is particular. Said Abaye to him: If that is so, what of the people of Bar Eliashib who object even to anyone crossing their field? In their case should not occupation confer presumptive right immediately [if they do not object]? And if you say that that if so, then you introduce a kind of sliding scale?7 - Raba therefore [again corrected himself and] said: For one year a man takes care of his title-deed, and so for two, three years does he take care; beyond that he does not take care. Said Abaye to him: If that is so, then [it would follow that] a protest made not in the presence of the holder is no protest, since the latter can say, 'If you had protested to me personally, I should have taken more care of my title-deed'? - The other can retort, '[You must have known of my protest because] your friend has a friend and your friend's friend has a friend.'8
R.Huna said: The three years mentioned in the Mishnah only count if the occupier took the crops in all three successively. What does this statement tell us? Does not the Mishnah say that PRESUMPTIVE TITLE IS CONFERRED BY THREE YEARS [POSSESSION] FROM DAY TO DAY? - You might think that the expression FROM DAY TO DAY was only meant to exclude short years,9 and that interrupted years were permissible;10 now I know that this is not so. R. Hama said: R. Huna admits [that interrupted years are also sufficient] in places where it is customary to leave fields fallow [in alternate years]. Is not this self-evident?11 - It required to be stated in view of the case where some owners leave their fields fallow and some do not, this man being one of those who do. You might think that in this case the claimant can say to him, 'If the field is yours, you ought to have sown it.'12 Now I know that this is not so, because the other can answer, 'I cannot keep watch over a single field in a whole valley';13 or he can also answer, 'I prefer this way, because it makes the field more productive.'
We learnt: [PRESUMPTIVE TITLE TO HOUSES] IS CONFERRED BY THREE YEARS [POSSESSION]. [Why should this be, seeing that] in the case of houses we can know if a man lives there by day but not if he lives there by night?14 Abaye answered: Who is it that testifies to [a man having lived in] a house? - The neighbours; and the neighbours know whether he has lived in it by night as well as by day. Raba answered: [The way it can be known] is if, for instance, two persons come forward and say, We hired the house from him and lived in it day and night for three years. Said R. Yemar to R. Ashi: But these men are interested witnesses,15 because if they do not make this assertion we shall tell them to go and pay the rent to the claimant?16 -R. Ashi replied: Only incompetent judges would proceed thus.17 [No.] The case Raba has in mind is where they come with the rent and inquire to whom they are to give it.
Mar Zutra said: If the claimant demands that two witnesses should be produced to testify that the occupier lived in the house three years day and night, his demand is valid.
(1) Ibid. XXIX, 5.
(2) And not a rule of law.
(3) Ibid. XXXII, 24. This obviously is a piece of good advice merely, and thus the question remains, whence do the Rabbis derive the rule that three years' possession confers presumptive right?
(4) Because the original owner waived his right for the time being.
(5) v. infra p. 155.
(6) Though he does not waive his right to the produce.
(7) The period required to confer hazakah will vary with the degree to which the original owners are particular.
(8) V. supra p. 140.
(9) E.g. six months in the first year and six in the last.
(10) So long as three full years were made up altogether.
(11) That in such places there must be three full years of occupation in all, but not necessarily at one stretch.
(12) Even though the fields all round are left fallow.
(13) Because he would have to bear singly the whole expense of the watchman.
(14) And according to R. Huna, the occupation must be continuous.
(15) And therefore their evidence cannot be accepted.
(16) To whom but for their evidence we should assign the house.
(17) I.e., accept their evidence, if they have already paid rent to the defendant.
Talmud - Mas. Baba Bathra 29b
[And though in this case the court does not suggest the plea] Mar Zutra admits that where the claimant is an itinerant peddler,1 even if he does not raise the plea, the court raises it for him.2 R. Huna also admits that [though normally the three years must be continuous], in the case of the shops of Mahuza3 [this is not necessary], because they are only used by day and not by night.
Rami b. Hama and R. 'Ukba b. Hama bought a maidservant in partnership, the arrangement being that one should have her services during the first, third and fifth years, and the other during the second, fourth and sixth. Their title to her was contested, and the case came before Raba. He said to the brothers: Why did you make this arrangement? So that neither of you should obtain a presumptive right against the other [was it not]?4 Just as you have no presumptive right against each other, so you have no presumptive right against outsiders. This ruling, however, only holds good if there was no written agreement between them to share [the maidservant]:if there was such an agreement, it would become bruited abroad.5
Raba said: If the occupier has utilised6 the whole field except the space of the sowing of a quarter of a kab, he acquires ownership [after three years] of the whole field with the exception of that space. Said R. Huna the son of R. Joshua: This only applies [if the space so left over] was suitable for sowing; but if it was not suitable for sowing, it is acquired along with the rest of the field. To this R. Bibi b. Abaye strongly objected, saying: If that is so, how does a man acquire a piece of rock [through occupation]? Is it not by stationing his animals there and laying out his crops there?7 So here too, he should have stationed his animals there and laid out his crops there. A certain man said to another, 'What right have you8 in this house?' He replied, 'I bought it from you, and I have had the use of it for a period of hazakah.'9 To which the other replied, 'But I have been living in an inner room [and therefore did not protest].'10 The case was brought before R. Nahman, who said to the defendant: You must prove that you have had constant use of the house11 [for three years without the claimant]. Said Raba to him: Is this a right decision? Is not the onus probandi in money cases always on the claimant?
A contradiction was pointed out between Raba's ruling here and his ruling in another place, and between R. Nahman's ruling here and his ruling in another place. For a certain man
(1) V. supra p. 109.
(2) Because as such people are away for long periods, it is easy for other persons to occupy their houses without being noticed.
(3) An important commercial centre in Babylonia.
(4) By having three years' undisturbed possession.
(5) And therefore it was incumbent on the claimant to lodge a protest before three years had passed, and since he did not do so, a presumptive right has been established.
(6) Lit., 'eaten'.
(7) I.e., by making some use of the ground to show that it is his.
(8) Lit., 'What do you want?'
(9) I.e., three years. And therefore it is mine, although I cannot produce any record of the purchase.
(10) Because to a certain extent I had the use of your room, being able to pass in and out, and therefore it has not belonged to you for three years.
(11) Lit., 'prove your eating'.
Talmud - Mas. Baba Bathra 30a
said to another, 'I will sell you all the property of Bar Sisin's.'1 There was a piece of land which was called Bar Sisin's, but the vendor said, 'This is not really the property of Bar Sisin though it is called Bar Sisin's.' The case was brought before R. Nahman, and he decided in favour of the purchaser. Said Raba to him: Is this a right decision? Does not the onus probandi always lie on the claimant? There is thus a contradiction between these two remarks of Raba, and also between the two rulings of R. Nahman.2 Between the two remarks of Raba there is no contradiction. In the latter case the seller is in possession; in the former the purchaser is in possession.3 Neither is there any contradiction between the two rulings of R. Nahman. [In the latter case,] since the seller professed to sell the property of Bar Sisin's and this land is called Bar Sisin's, it is for him to prove that it is not Bar Sisin's, but here let the occupier [in pleading presumptive right] be but treated as if he produced a document of sale,4 in which case should we not say to him: 'Prove your document to be valid and you can remain in ownership of the property'?5
A certain man said to another, 'What right have you in this house?' He replied, 'I bought it from you and have had the use of it for the period of hazakah.' Said the other, 'I was abroad6 all the time [and therefore did not know or protest].' 'But,' said the first, 'I have witnesses to prove that you used to come here for thirty days every year.' 'Those thirty days,' he replied, 'I was occupied with my business.' [On hearing of the case] Raba said: It is quite possible for a man to be fully occupied with his business for thirty days [and not to know that another has occupied his house].
A certain man said to another, 'What right have you on this land?' He replied, 'I bought it from so-and-so who told me that he had bought it from you.' Said the first, 'You admit then
(1) I.e., which I acquired from Bar Sisin.
(2) Because in the former case Raba decides in favour of the purchaser and R. Nahman in favour of the seller, and in the latter case Raba decides in favour of the seller and R. Nahman in favour of the purchaser.
(3) And Raba decides in each case in favour of the party in possession.
(4) The three years' occupation taking the place of a title-deed.
(5) So here we can say to him, 'Prove that you have had unchallenged occupation'. Thus in both cases R. Nahman requires the party in possession to prove his right.
(6) Lit., 'in outside markets;' i.e., in places not on any caravan route.
Talmud - Mas. Baba Bathra 30b
that this land was once mine and that you did not buy it from me. Clear out; you have no case against me.'1 [On hearing of this] Raba said: He was quite within his rights in what he said to him.2
A certain man said to another, 'What right have you on this land?' He replied, 'I bought it from so-and-so and have had the use of it for the period of hazakah.' Said the other, 'So-and-so is a robber.''But,' said the first, 'l have witnesses to prove that I came and consulted you and you advised me to buy the property.' 'The reason is,' said the other, 'that I preferred to go to law with you rather than with him.'3 [On hearing of this] Raba said: He was quite within his rights in what he said to him. What authority does Raba follow? - The authority of Admon; for we have learnt: 'If a man claims a field after having witnessed4 to the sale of it to another, Admon says that [his claim is still admissible] because he can say, I prefer to go to law with the second rather than the first; the Sages, however, say that [by so doing] he forfeits his right [to put forward a claim]. - You may even say that Raba is in agreement with the Rabbis5 also. For in that case [they quash his right to make a claim] because he has actually done something [which conflicts with it],6 but in this case [he has merely said something], and a man may easily let a word slip out of his mouth.
A certain man said to another, 'What right have you on this land?' He replied, 'I bought it from so-and-so and I have had the use of it for the period of hazakah.' Said the first, 'So-and-so is a robber.' 'But,' said the other, 'I have witnesses to prove that you came the evening [before] and said to me, "Sell it to me".' 'My idea was,' said the first, 'to buy what I was already legally entitled to. [On hearing of it] Raba said: It is not unusual for a man to buy what he is already legally entitled to.7
A certain man said to his neighbour, 'What right have you on this land?' He replied, 'I bought it from so-and-so and have had the use of it for the period of hazakah.'8 Said the other, 'But I have a title deed to prove that I bought it from him four years ago.' Said the other; 'Do you think that when I say the period of hazakah l mean only three years? I mean a lot of years.'9 Said Raba: It is not unusual to refer to a long period of years as 'the period of hazakah'. This [maxim] would apply [to the present case] only if the occupier has had the use of the land for seven years, so that his presumptive right came before the deed;10
(1) Lit., 'you are not my litigant.'
(2) Because the occupier had no proof that the man from whom he bought the land bought it from the original owner. Hence his occupation is not supported by any genuine plea.
(3) Lit., 'The second suits me, the first is a harder customer.'
(4) I.e., signed his name as witness to the contract of sale.
(5) I.e., the Sages.
(6) Viz., signed a document.
(7) In order to avoid the trouble of going to law.
(8) Meaning thereby presumably 'three years'.
(9) And the reason why I said merely 'period of hazakah' was because I did not know you had a deed going back further than three years.
(10) Since he had already had the use of the land for three years after his alleged purchase of it, and his title was therefore unassailable.
Talmud - Mas. Baba Bathra 31a
but if only six years, then no protest could be more effective than this.1
[There was a case] where one said, '[This land belonged] to my father,'2 and the other pleaded, 'It belonged to my father'. The one brought witnesses to prove that it belonged to his father, and the other brought witnesses to prove that he had had the use of it for the period of hazakah. Rabbah said [in giving judgment]: What motive had he3 to tell a falsehood? If he liked, he could have pleaded [without fear of contradiction], 'I bought it from you and had the use of it for the period of hazakah.'4 Said Abaye to him: But the consideration, 'why should he tell a falsehood,' is not taken into account where it conflicts with evidence?5 So the occupier pleaded again, 'Yes, it did belong to your father, but I bought it from you, and what I meant by saying that it belonged to my father was that I felt as secure In it as if it had belonged to my father.' [The question here arises:] Is a litigant allowed to alter his pleas6 [in the course of the case], or is he not allowed to alter his pleas? 'Ulla said: He is allowed to alter his pleas; the Nehardeans say, he is not allowed to alter his pleas. 'Ulla, however, admits that if this man had pleaded at first,' It belonged to my father and not to yours,' he could not later alter his plea [to say, 'It did belong to yours']. 'Ulla also admits that if a man does not amend his pleas in any way when in court, but after leaving the court comes In again and amends them, the rule that he may alter his original plea does not apply, because we assume that someone has suggested the amended plea to him. The Nehardeans [on their side] admit that if [after saying, 'It belonged to my father'] he pleads, 'my father who bought it from your father,' he is allowed to alter his plea [to this effect];7 also that if a man makes certain statements outside [the court] and then wants to plead something quite different in court, he may do so, because a man often does not wish to state his case save in actual court. Amemar said: I am a Nehardean, and l hold that pleas may be altered. And such is the accepted ruling, that pleas may be altered.
[A case arose in which] one said, 'This [land belonged] to my father,' and the other said, 'To my father,' but the one brought witnesses to prove that it had belonged to his father and that he had had the use of it for the period of hazakah, and the other brought witnesses [only] to prove that he had had the use of it for a sufficient number of years to confer a legal title. Said R. Nahman: The evidence that the one has had the use of it cancels out the evidence that the other has had the use of it, and the land is therefore assigned to the one who brings evidence that it belonged to his father. Said Raba to him: But the evidence has been confuted?-He replied: Granted that it has been confuted in regard to the user,8
(1) Namely, the action of the original owner in selling the land after the occupier had been on it only two years, so that in reality he never acquired hazakah.
(2) Lit., 'fathers'.
(3) The latter, who occupied the field.
(4) Which is a stronger plea and therefore we believe him when he says that he inherited it from his father.
(5) In this case, the evidence brought by the claimant that the land had belonged to his father.
(6) Lit., 'plead and again plead,' i.e., modify or expand the first plea, but not contradict it entirely. V. infra.
(7) Because he is simply making his former plea more emphatic, and not altering it.
(8) Lit., 'the eating of it.'
Talmud - Mas. Baba Bathra 31b
has it been confuted in regard to the father? May we say that [in principle] the difference between R. Nahman and Raba here is the same as that between R. Huna and R. Hisda in the following statement: If two sets1 of witnesses contradict one another [so that one set must be giving false evidence], R. Huna says that each set may give evidence as a whole [in another case];2 R. Hisda, however, says, What have we to do with false witnesses?' May we say then that R. Nahman here follows R. Huna3 and Raba, R. Hisda?-No. There is no difference between them in the application of R. Hisda's ruling.4 Where they differ is in the application of R. Huna's ruling. R. Nahman would thus have acted on the ruling of R. Huna, whereas Raba [would maintain] that R. Huna only meant it to apply to evidence given in another case entirely, but not, as here, to another part of the same case.
He5 then brought witnesses to prove that the land had belonged to his father. R. Nahman [thereupon] said: As we put him out, so we can put him in;6 and we disregard any disrepute that this may bring on the Beth din.7 Raba [or others say R. Ze'ira] objected [to this ruling on the strength of the following]: If two witnesses declare that a man is dead and two others declare that he is not dead, or if two declare that his wife had been divorced from him and two that she had not been divorced, she must not marry again, but if she has married she need not leave [her husband]. R. Menahem, son of R. Jose, says that she must leave [the second husband]. Said R. Menahem, son of R. Jose: When do I say that she must leave the husband? - If the witnesses [who say he is not dead] came first and she married afterwards;8 but if she was married before these witnesses came she need not leave her husband.'9 R. Nahman replied: I was going to act [according to the declaration I just made].10 Now, however, that you have brought arguments against me and that R. Hamnuna in Sura has [likewise] refuted me, I shall not act so. [In spite of this statement, however,] he subsequently did act so Those who saw it thought he had made a mistake, but this was not the case, because he had the support of great authorities.11 For we learnt: A man is not given the status of priest12 On the evidence of one witness. Said R. Eliezer: This is only when his title is called into question; but if no one calls his title into questions one witness is sufficient. Rabban Simeon b. Gamaliel said in the name of R. Simeon the son of the Segan:13 One witness is sufficient to prove a man's title to be a priest. Is not Rabban Simeon b. Gamaliel merely repeating R. Eliezer? And should you say that they differ in regard to the case where there is only one challenger, R. Eliezer holding that an objection is valid if raised by one challenger, and Rabban Simeon b. Gamaliel holding
(1) In regard to all the discussion which follows it should be borne in mind that according to Jewish law, two witnesses are required to establish a case (v. Deut. XIX, 15).
(2) I.e., it is not disqualified by the suspicion of having given false evidence in this case. But one witness from one set may not combine with one from the other in another case, because one of them has certainly given false evidence in this case.
(3) In admitting the evidence of witnesses whose veracity is suspect.
(4) Both would agree that according to R. Hisda the evidence in regard to the father cannot be accepted.
(5) I.e., the occupier, having heard R. Nahman's decision.
(6) Lit., we put him down and we can raise him up.'
(7) Which will be criticised for altering its decisions.
(8) Because in that case if she bad consulted the Beth din, they would not have allowed her to marry.
(9) For fear that she might bring into disrepute the Beth din which gave her permission to marry again. This refutes R. Nahman.
(10) And reverse the first decision on the production of new evidence.
(11) Lit., 'trees'.
(12) So as to be entitled to receive the priestly dues and perform the priestly functions.
(13) The title given to the Deputy High Priest.
Talmud - Mas. Baba Bathra 32a
that there must be two, then what of the statement of R. Johanan who said that according to all authorities no objection is valid unless it is raised by two challengers? We suppose therefore that the objection has been raised by two; and here we are dealing with a case where the father of this man is known to have been a priest, but a report has been spread that his mother was a divorced woman1 or a haluzah,2 and we therefore deposed him, and then one witness came and testified that he was a genuine priest and we reinstated him, and then two came and testified that his mother was a divorced woman or a haluzah and we degraded him again, and then one more witness came and testified that he was a genuine priest. Now all authorities agree that the evidence [of the two witnesses who testify to his genuineness] is combined [although they did not testify in each other's presence], and the point at issue is whether or not we disregard any disrepute that may be brought upon the Beth din [for altering its decision]. R. Eliezer held that once we have deposed him we do not reinstate him, for fear of bringing disrepute on the Beth din, whereas Rabban Simeon b. Gamaliel says that just as we have deposed him so we can reinstate him, and we disregard any disrepute that may be brought thereby on the Beth din.3
R. Ashi strongly disputed this explanation [saying]: If this is the case, why [should R. Eliezer refuse to reinstate him] if only one witness appears at the end? Why not even if two come together?4 No, said R. Ashi. All agree that we disregard any disrepute that may be brought on the Beth din,5 and the point at issue here is whether the evidence [of different witnesses] can be combined, a point on which we find a difference between Tannaim. For it has been taught: 'The evidence of the two witnesses is not combined, and does not carry weight unless they both [testify to] have seen at the same time. R. Joshua b. Korhah, however, says that the evidence is combined even if one [testifies that he] saw at one time and the other at another.6 Nor is their evidence accepted in the Beth Din unless they testify together. R. Nathan, however, says that the evidence of one may be taken on one day and the evidence of the other when he comes on the next day.'7
A certain man said to another, 'What are you doing on this land?' He replied, 'I bought it from you, and here is the deed of sale.'
(1) And therefore he was disqualified, on the basis of Lev. XXI, 7.
(2) V. Glos. The Rabbis forbade a priest to marry a haluzah also.
(3) And R. Nahman in his dictum was thus following R. Simeon b. Gamaliel.
(4) Since R. Eliezer is anxious to safeguard the dignity of the Beth din.
(5) And therefore R. Nahman had great authorities on his side.
(6) E.g., one testifies that he saw the claimant lend the defendant a certain sum on one day, while the other maintains that it was on the next day. This first clause of the Baraitha here quoted has nothing to do with the argument, and is only inserted to make the quotation complete.
(7) Thus R. Gamaliel agrees with R. Nathan and R. Eliezer with the anonymous opinion.
Talmud - Mas. Baba Bathra 32b
'It is a forged document,' said the first. On this the other leaned over to Rabbah and whispered to him, 'It is true that this is a forged document;1 I had a proper deed but I lost it, so I thought it best to come into court with some sort of document.' Said Rabbah: What motive has he for telling a falsehood? If he had liked he could have said [without fear of contradiction] that the document was genuine. Said R. Joseph to him: On what do you base your decision? On this document? But this document is only a piece of clay!2
A certain man said to another, 'Pay me the hundred zuz that I am claiming from you; here is the bond.' Said the other: 'It is a forged bond.' The first thereupon leaned over and whispered to Rabbah, 'It is true the bond is forged ' but I had a genuine bond and lost it, so I thought it best to come into court with some sort of document.' Rabbah thereupon said: What motive has he for telling a falsehood? If he had liked, he could have said that it is a genuine bond. Said R. Joseph to him: On what do you base your decision? On this document? But this document is only a piece of clay. R. Idi b. Abin said: The accepted ruling follows the view of Rabbah in the case of the land3 and that of R. Joseph in the case of the money.4 It follows the view of Rabbah in the case of the land, because [we say,] Let the land remain in its present owner ship;5 and that of R. Joseph in the case of the money, because we again say, Let the money remain in its present ownership.6
A certain [man who had gone] surety for a borrower said to him, 'Give me the hundred zuz which I paid the lender on your behalf; here is your bond.' Said the other, 'Did I not pay you?' He rejoined, 'Did you not borrow the money from me again?' R. Idi b. Abin [before whom the case came] sent a message to Abaye [enquiring] as to the ruling for such a case.7 Abaye sent him back answer: What do you want to know?8 Did you not yourself say that the accepted ruling is that of Rabbah in the case of the land and of R. Joseph in the case of the money, namely, that the money should remain In Its present ownership?9 This, however, holds good only if the surety said to the other, 'After repaying, you again borrowed the money from me.'10 If, however, he says, 'I returned it to you because the coins were worn or rusty,' the obligation of the bond still remains.
It was rumoured of Raba b. Sharshom that he was using for himself land that belonged to orphans [for whom he was trustee]. So Abaye sent for him and said to him: Tell me now the main facts of the case. He said: I took over this land from the father of the orphans as a mortgage [for money that he owed me], and he owed me
(1) Possibly one not actually forged but referring to a fictitious sale.
(2) And since he has admitted as much, how can you say that 'if he had liked he could have said it was genuine'?
(3) Where the defendant produces the forged document.
(4) Where the claimant produces the forged document.
(5) Lit., 'where it stands'.
(6) Since there is a doubt to whom it belongs.
(7) I.e., which he should believe.
(8) Following reading of Rashb.
(9) The bond after it has been honoured is regarded by Abaye as on the same footing as the 'forged' bond mentioned above.
(10) Because the previous transaction was now closed, and the bond no longer had any force.
Talmud - Mas. Baba Bathra 33a
other money besides.1 When I had had the use of the land for the number of years covered by the mortgage, I said to myself: If I restore the land to the orphans and then tell them that I have still a claim on their father for more money, [I shall have to comply with] the rule of the Rabbis that 'anyone who claims to recover from orphans must support his claim with an oath.' I will therefore keep back the mortgage bond and continue to use the land to the extent of the money still owing to me; for since, if I were to say that I had bought the land, my plea would be accepted,2 I shall certainly be believed when I say that they owe me money. Said Abaye to him: You could not plead that you have bought the land, because common report says that it belongs to the orphans.3 Go therefore and restore it to them, and when they become of age4 claim your debt from them in court.
A relative of R. Idi b. Abin died, leaving a date tree. [R. Idi and another man disputed its possession] R. Idi saying, 'I am the nearer relative,' whilst the other man said, 'I am the nearer relative;' [and the other man seized the tree]. Eventually, however, he admitted that R. Idi was a nearer relative, and R. Hisda assigned to him the tree. He [R. Idi] then claimed: 'Let him return me the produce which he has consumed from the time he seized it.' Said R. Hisda: 'So this is the man5 who is said to be a great authority! On what ground do you base6 [your ownership]? On this man s admission. But he has been saying till now that he was the nearer relative.'7 Abaye and Rab did not concur in R. Hisda's decision;
(1) For which no land had been mortgaged to him.
(2) Because he had had unchallenged occupation for more than three years.
(3) And this is equivalent to a protest, in which case no right can be proved save through a deed of sale.
(4) I.e., thirteen years old.
(5) Referring to R. Idi.
(6) Lit., 'on whom'.
(7) And therefore he is in effect making you a gift of the tree, though you cannot claim it by law. Hence you cannot claim the produce, if he does not choose to give you that also.
Talmud - Mas. Baba Bathra 33b
they held that the man's admission covered the produce as well as the tree.1
[A case arose] in which one said, ['The land belonged] to my father,' and another said 'To my father,' but while the one brought witnesses to prove that it had belonged to his father [up to the time of his death], the other brought witnesses to prove that he had had the use of it for the period of hazakah.2 [When the case came before] R. Hisda, he said: What motive has he [who occupies it] to tell a falsehood? If he likes he can say, 'I bought it from you and have had the use of it for the period of hazakah.'3 Abaye and Raba, however, did not concur in this judgment of R. Hisda, on the ground that we do not advance the plea 'What motive had he to tell a falsehood' when it conflicts with direct evidence. A certain man said to another, 'What are you doing on this land?' He replied, 'I bought it from you and have had the use of It for the period of hazakah.' He then went and brought witnesses to prove that he had had the use of it for two years [but could not find witnesses for the third]. R. Nahman thereupon decided that he should restore both the land and the produce. R. Zebid said: If he had pleaded, 'I was working4 the land for the produce only [as a metayer],' his plea would have been accepted.5 For has not Rab Judah laid down that if a man takes a pruning knife and rope In his hand and says, 'I am going to gather the dates from the tree of so-and-so who has sold them to me,' his word is accepted, because a man would not take the liberty of gathering the dates from a tree which did not belong to him? So here, a man would not take the liberty to consume produce that did not belong to him. But might not the same be said of the land also?6 -If he [the occupier] claims the land, we say to him: Show us your deed of sale. Cannot we then say the same in the case of the produce also? - Written agreements are not usually made in regard to produce.
A certain man said to another, 'What right have you on this land?' He replied, 'I bought it from you and I have had the use of it for the period of hazakah;' and he brought one witness to prove that he had had the use of it for three years. The Rabbis of the court of Abaye7 propounded the opinion that this case was parallel to that of the bar of metal8 [which was decided] by R. Abbah. [What happened was] that a certain man seized a bar of metal from another, and the latter brought the case before R. Ammi, before whom R. Abbah was sitting at the time. He brought one witness to prove that the man had snatched the article from him. 'Yes,' said the other, 'I did snatch, but it was my own property that I snatched.' R. Ammi thereupon said:
(1) Lit., 'Since he admitted, he admitted.' The above is the interpretation of this passage given by Rashb., and though satisfactory in itself it does a certain amount of violence to the original. Tosaf. therefore reads, instead of 'he admitted that R. Idi was a nearer relative', simply 'he admitted', i.e., he gave way, allowing R. Idi to keep the tree, though he did not formally admit that he was the nearer relative. We then translate lower down: 'Through whose word (do you become owner of the tree)? Through this man's etc:' and in the last sentence, 'Since he gave way (in regard to the tree), he must give way (in regard to the produce).' R. Han. reads, instead of 'he admitted etc.', 'R. Idi brought witnesses to prove that he was the relative' (or, alternatively, 'the nearer relative'). In that case we translate the last sentence, 'Abaye and Raba held . . . that since he admitted (that he consumed the produce), he must abide by the admission (and pay for it).'
(2) I.e., not less than three years.
(3) And therefore we believe him when he says that it belonged to his father.
(4) Lit., 'l went down to.'
(5) And he would not have had to restore the produce as well as the land.
(6) I.e., that if the occupier pleads, 'I bought it from the claimant', his word should be accepted, because he would not take the liberty of occupying it otherwise.
(7) Lit., 'the Rabbis sitting before Abaye.'
(8) Presumably silver or gold.
Talmud - Mas. Baba Bathra 34a
How are the judges to decide this case? Shall we make him pay? - There are not two witnesses against him. Shall we let him off scot free? - There is one witness.1 Shall we administer an oath to him? - But he admits that he snatched the article, and since he admits that, he is, as far as this case goes, a robber.2 Said R. Abba to him: He is [in the position of a man who is] legally under obligation to take an oath and is yet unable to take it; and the rule is that whoever is under obligation to take an oath which he cannot take must pay.3 Abaye, however, said to the Rabbis: Are the two cases on all fours? [There in the case of the bar of metal] the witness comes to oppose [the defendant], and if there were another witness with him we should make him give up the article. Here [in the case of the land] the witness comes to support [the defendant], and if there were another witness we should confirm his title to the land.4 If you do wish to draw a parallel with the case of R. Abbah, it would be in the case of one witness [who testifies that the occupier has had the use of the land] two years, and [where the claim is for] the produce.5
(1) And therefore, since the claim is a pecuniary one, he could be called upon to deny the allegation on oath (V. Shebu. 40a).
(2) And therefore he is disqualified in this case from taking an oath in court.
(3) In the case of the land the occupier ought to take an oath to deny the allegation of the one witness, but he cannot take an oath since he admits that he made use of the produce. Hence he should not only give up the land but make restitution for the produce he has consumed.
(4) Since therefore the witness is in support of the occupier he cannot be made without more ado to pay for the produce, but might take an oath to confirm his claim in regard to the produce, though in the absence of two witnesses to prove his right he would have to return the land; v. Yad Ramah, a.l.
(5) Here the witness is against the occupier, since he testifies that he occupied it only two years and not three, and if another witness made the same statement he would have to pay. Hence he is under obligation to deny the statement of the one witness on oath. This, however, he cannot do, as he admits that he has consumed the produce for two years. Hence he must pay.
Talmud - Mas. Baba Bathra 34b
There was a certain river boat about which two men were disputing.1 One said, 'It is mine', and the other said, 'It is mine. One of them went to the Beth din and appealed to them: 'Attach the boat2 until I bring witnesses to prove that it belongs to me.' [In such a case] should we attach the boat or not?3 R. Huna says we should attach it,4 and Rab Judah says we should not.5 [The Beth din having attached the boat],6 the man went to look for his witnesses but did not find them, whereupon he requested the Beth din to release the boat, leaving it to the stronger to obtain possession.7 In such a case should we release or not? Rab Judah says we should not release,8 R. Papa says we should release.9 The accepted ruling is that we should not attach in the first instance, but if we have attached we should not release.10
[If there are two claimants to a property11 and] one says,' It belonged to my father,' while the other says, 'To my father' [without either of them bringing any evidence], R. Nahman says that whichever is stronger can take possession.12 Why, [it may be asked,] should the ruling be different here from the case in which two deeds [of sale or gift relating to the same property and] bearing the same date
(1) But apparently without having actually seized the boat, since in that case the law would be that they should divide it, according to B.M. ad init.
(2) So that the other should not sell it in the meanwhile.
(3) I.e., which course is more likely to assist the rightful owner to obtain possession?
(4) Because we presume that he will succeed in finding witnesses, and therefore we prevent the boat from being disposed of in the interval.
(5) Because we are afraid he will not find witnesses and we shall not know to whom to restore the boat, and therefore it is best to leave it alone.
(6) It is not clear from the text whether this is a hypothetical case, or whether the Beth din really did attach the boat, perhaps on the request of both parties.
(7) Lit., 'to prevail' - whether by argument or by force.
(8) Because once property has come into the hands of the Beth din, it is not right that they should release it except to restore it to the proper owner.
(9) Because they only attached it from the first on this condition.
(10) I.e., the halachah follows R. Judah.
(11) Whether landed property or other.
(12) v. supra n. 7.
Talmud - Mas. Baba Bathra 35a
are presented in court,1 in which case Rab rules that the property should be divided between the claimants, and Samuel that the judges should assign it according to their own discretion?2 - In that case there is no chance that further evidence should come to light,3 here there is a chance that further evidence may come to light.4 But why should the ruling here be different from what we have learnt: 'If a man exchanges a cow for an ass and it calves, and similarly if a man sells a female slave and she bears a child, if the seller says that the birth took place before the sale5 and the purchaser that it took place after the sale,6 they must share the offspring'?7 In that case each
(1) I.e., where a man has first assigned a property to Reuben and then on the same day made out another deed assigning it to Simeon. The hour of the day at which the deed was written or transferred was not usually specified, save in Jerusalem.
(2) According to Rashb. this means that they should estimate which of the two claimants the donor was more likely to favour; according to Tosaf. they should consult purely their own judgment.
(3) The deeds themselves being the whole of the evidence bearing on the case.
(4) In which case the man who has seized the property may still be dispossessed.
(5) Lit., 'before I sold it, I.e., before the purchaser had taken possession, and therefore the offspring was not included in the sale.
(6) Lit., 'since I bought it.'
(7) The transaction has to be one of exchange and not of sale in the case of the cow, for the reason that, in the case of all movables except human beings, a transaction of sale is not completed until the article bought is 'pulled' by the purchaser. Hence no dispute would have been possible about the calf. In the case of an exchange, however, the transaction is concluded as soon as the article given in exchange-here, the ass-is handed over. V. B.M. 100a.
Talmud - Mas. Baba Bathra 35b
had [at some time] a pecuniary interest [in the article in dispute].1 but in this case of R. Nahman, if the property belonged to one, It never belonged to the other.
The Nehardeans laid down that if an outsider2 comes and seizes the property, he is not forced to surrender it,3 because R. Hiyya taught: He who robs the public4 is not a robber in the legal sense.5 R. Ashi said: He is indeed a robber in the legal sense,6 and why [does R. Hiyya say that] he is not a robber in the legal sense? Because he is unable to make restitution like an ordinary robber.7
THEIR PERIOD OF HAZAKAH IS THREE YEARS FROM DAY TO DAY. R. Abba said: If [the claimant of a piece of land] helps [the man In possession] to lift a basket of produce on to his shoulders, this at once creates a presumption [that the land belongs to the latter].8 R. Zebid said: If, however, he pleads, 'I have installed him [as a metayer] with a right to the produce [but not the ownership of the land],' his plea is accepted. This too is only the case if the plea is made within three years [of the alleged transfer], but not later. Said R. Ashi to R. Kahana: If he had made him a metayer [for more than three years], what was he to do?9 He said: He should have lodged a protest within three years. For, were you not to say so, then what about the so-called 'mortgage of Sura'10 containing the stipulation, 'On the termination of these [X] years this land shall be given up without payment.' Now suppose the mortgagee suppresses the mortgage bond and asserts that he has bought the land; are we indeed to say that his plea is to be accepted? Would the Rabbis make a regulation11 which would expose the mortgager to unfair loss? But the fact is that he can protect himself by lodging a protest within three years; and so in this case also he can protect himself by lodging a protest within three years.
Rab Judah said in the name of Rab: A Jew who derives his title from a non-Jew is on the same footing as a non-Jew:12 just as a non-Jew cannot prove his right save through producing a deed of sale,13 so the Jew who derives his title from a non.Jew [to a field originally belonging to a Jew] cannot prove his right save through producing a deed of sale.14 Said Raba: If, however, the Jew pleads,
(1) I.e., each was at some time the owner of the cow or the slave.
(2) Lit., 'a man from the street'.
(3) Because possibly it belongs to neither of the claimants.
(4) The two claimants being regarded as the 'public' (lit., 'many').
(5) And cannot be forced to make restitution.
(6) And must be deprived of the property.
(7) Because he does not know to which of the two claimants he should restore the property, and therefore he cannot make atonement like an ordinary robber.
(8) This act being a kind of admission that the land belongs to him.
(9) So as to ensure that he will be able to recover the property at the end of the period of leasing.
(10) A form of deed by which a borrower transferred property to the lender for a fixed number of years.
(11) Viz., that three years' occupation gives a title to ownership.
(12) In the matter of hazakah.
(13) It is assumed that a Jew is afraid to protest against the occupation of his land by a non-Jew, and therefore three years' undisturbed occupation confers no hazakah on the latter.
(14) Given by the original Jewish owner to the non-Jew, even though both he himself and the non-Jew have enjoyed undisturbed occupation for three years.
Talmud - Mas. Baba Bathra 36a
'The non-Jew said to me that he had bought it from you,' his plea is accepted. [But] can it be possible that a plea which would not be accepted if put forward by a non-Jew1 should be accepted if put forward by a Jew in the name of a non-Jew? Raba therefore corrected himself as follows: If the Jew pleads, 'The non-Jew bought it from you in my presence and sold it to me,' his plea is accepted, because if he had liked he could have brought against him [without fear of contradiction the still stronger plea], 'I myself bought it from you.'
Rab Judah further said:2 If a man takes a knife and a rope and says, 'I am going to gather the fruit from so-and-so's date tree which I have bought from him, 'his statement is accepted, because a man would not ordinarily presume to gather the fruit from a tree which does not belong to him. Rab Judah further said: If a man occupies the strip of another man's field outside of the 'wild animals' fence,'3 this does not constitute a hazakah, because the owner can say, [The reason why I did not protest was because] whatever he sows, the wild animals eat up. Rab Judah further said: If he ate thereof4 [only] 'uncircumcised' produce,5 this does not count towards the three years of hazakah. It has also been taught to the same effect: If he takes from it only 'uncircumcised' produce, the produce of 'mingled seed' ,6 or the produce of the Sabbatical year,7 this does not confer hazakah. R. Joseph said: If he takes from the field immature produce,8 this does not confer hazakah.9 If, however-added Raba-the field is in the 'neck of Mahuza',10 this does confer hazakah. R. Nahman said: The occupation of land which is full of cracks does not confer hazakah.11 If the land yields no more than is sown In it,12 its occupation does not confer hazakah.13 Members of the Exilarch's house do not obtain hazakah through occupation of our fields,14 nor do we obtain hazakah through occupation of theirs.15
AND SLAVES etc. Is there then a presumptive title to slaves? Has not Resh Lakish laid down that 'there is no presumptive title to living creatures?16 - Said Raba: [What Resh Lakish meant is that] there is no presumptive title in regard to them immediately, but there is after three years' possession.17 Raba further said: If the slave is an infant in a cradle, presumptive right to it is conferred immediately.18 Surely this is self-evident? - It required to be stated on account of the case where the child has a mother. You might think in that case that there is a chance that the mother brought it into the house where It now is [and left it there]. [Raba therefore] tells us that a mother does not forget her child.
Some goats [went into a field] in Nehardea [and] ate some peeled barley [which they found there]. The owner of the barley went and seized them, and made a heavy claim on the owner of the goats.19 The father of Samuel said: He can claim up to the value of the goats, because if he likes he can plead that the goats themselves are his by purchase.20 [But surely] Resh Lakish has said that there is no hazakah to living things? Goats are an exception, because they are entrusted to a goatherd.21 But they are left to themselves morning and evening?22 - In Nehardea thieves abound, and the goats are delivered from hand to hand.23
R. ISHMAEL SAYS, THREE MONTHS etc. May we say that the actual difference [between R. Ishmael24 and R. Akiba25 ] is in regard to ploughing,26 R. Ishmael holding that ploughing does not help to confer hazakah and R. Akiba that it does? - If this were the case, why should R. Akiba require a month
(1) Because, as stated above, the non-Jew can only prove his right by producing the deed of sale.
(2) v. supra 33b.
(3) In fields adjoining woods it was customary to make a fence a little within the border of the field and to throw seeds on the strip outside, so that the animals from the wood should eat what grew from these and not seek to penetrate within the fence.
(4) The field he occupied.
(5) 'Orlah; Lev. XIX, 23, 24. When ye come to the land and plant trees for food, ye shall count the food thereof as uncircumcised; three years it shall be as uncircumcised unto you; it shall not be eaten of.
(6) Kila'im; v. Lev. XIX, 29; Deut. XXII, 9.
(7) 'Orlah and Kila'im are prohibited; the produce of the Sabbatical year was common property. Hence the owner would not trouble to protest in these
(8) To feed cattle with.
(9) Because by such a proceeding the occupier seemed to show that he was conscious that the field did not belong to him, and therefore the owner would not trouble to protest.
(10) A fertile valley in the district of Mahuza where it was customary to do this, because corn was so abundant that it paid to feed cattle with it.
(11) Such land being practically barren.
(12) Lit., 'if he takes out a kor (of seed) and brings in a kor (of produce).'
(13) Because it is not worth the owner's while to protest.
(14) Because the ordinary man is afraid to protest against the occupation.
(15) Because knowing that they are able to take forcible possession whenever they please, they do not trouble to protest.
(16) Lit., 'those kept in the folds', i.e., young animals, because they are liable to stray.
(17) And in this respect living things differ from inanimate, possession of which confers presumptive right immediately, on the presumption that 'whatever a man holds is his'.
(18) Because the child could not have got into the house by itself; hence the presumption is that it was bought from the previous owner.
(19) I.e., he asserted that the goats had eaten barley to a much greater value than their own.
(20) I.e., if he asserted that the goats belonged to him, his plea would be valid (in default of rebutting evidence). Hence, in default of further evidence on either side, he can claim compensation up to the value of the goats.
(21) And therefore if they are found in another man's property, it is presumed that he has bought them.
(22) In the morning when they go by themselves from their owners to the goatherd, and in the evening when they go back by themselves from the goatherd to the owners.
(23) I.e., from the owners to the goatherds and vice-versa, and therefore have no chance to stray.
(24) Who requires a minimum of eighteen months. V. supra 28a.
(25) Who requires a minimum of fourteen months.
(26) I.e., if one ploughed the field without sowing.
Talmud - Mas. Baba Bathra 36b
in the first and third years? Even one day would be enough.1 - No! Both are agreed that ploughing does not help to confer)hazakah, and the difference between them is whether a full or partially grown crop is required.2 Our Rabbis taught: Ploughing does not help to confer hazakah. Some authorities hold, however, that it does help. Who are 'some authorities'? - R. Hisda said: This is the opinion of R. Aha, as we see from the following: If a man ploughs a field fallow one year and sows it two,3 or [even] ploughs it fallow two years and sows it one, this does not confer hazakah. R. Aha, however, says that it does give him a presumptive right.
R. Bibi inquired of R. Nahman: What is the reason of those authorities who lay down that ploughing does confer hazakah? - [He answered:] A man will not see someone else plough his field and keep quiet. And what is the reason of those who say that ploughed fallow does not confer hazakah?- Because the owner says to himself, 'The more he ploughs the better for me.'4 The people of Pum Nahara sent to inquire of R. Nahman b. R. Hisda as follows: Will our master be so good as to instruct us whether ploughed fallow helps to confer hazakah or not? He replied: R. Aha and all the chief authorities of the age hold that ploughed fallow does help to confer hazakah. R. Nahman b. Isaac said: You gain nothing by citing authorities;5 for Rab and Samuel in Babylon and R. Ishmael and R. Akiba in Eretz Yisrael held that ploughing does not help to confer presumptive right. The views of R. Ishmael and R. Akiba [on the subject] can be derived from the Mishnah.6 Where do we find the view of Rab on the subject? - In the following statement: Rab Judah said in the name of Rab: This7 is the view of R. Ishmael and R. Akiba, but the Sages say that the hazakah [of such a field] is conferred only by occupation for three full years.8 Now the expression 'full years' is intended to exclude ploughed fallow, is it not?9 Where is the view of Samuel on the subject expressed? - In the following statement: Rab Judah said in the name of Samuel: This is the view of R. Ishmael and R. Akiba, but the Sages say that hazakah is not obtained until the occupier- has gathered in three crops of dates and culled three vintages and plucked three crops of olives. Where does the difference arise between Rab and Samuel? - The difference arises In the case of a young date tree.10
R. ISHMAEL SAID: THIS APPLIES ONLY TO A CORNFIELD etc.
Abaye said: On the strength of R. Ishmael's ruling,11 we may attribute the following opinion to the Rabbis.12 Suppose a man has thirty trees in a field planted ten to the beth se'ah,13 then if he takes the produce of ten in one year, ten in the next, and ten in the third year, this constitutes hazakah.14
(1) Since a field can be ploughed in one day.
(2) R. Ishmael requires a full crop, which takes at least three months to grow, and R. Akiba requires only a partially grown crop, for which one month is sufficient.
(3) I.e., the first and the third year.
(4) Lit., 'Let him only put every tooth of the plough into the ground,' i.e., so that he shall find it better prepared when he comes to it.
(5) Lit., 'Is it an advantage (to you) to reckon up authorities?'
(6) Where both lay down that a certain amount of cropping must be done in each of the three years.
(7) That the period of hazakah for a non-irrigated field is not three full years but either eighteen months or fourteen months, in either case three crops being necessary.
(8) Lit., 'from day to day'.
(9) Because if the mere ploughing confers hazakah, one day in the year is sufficient. As Tosaf. points out, this reasoning conflicts with the statement made above, that the reason why the Rabbis require three full years is because up to that time a man is careful of his title-deeds.
(10) Which produces three crops in less than three years. According to Rab, three croppings of such a tree would not confer hazakah, according to Samuel they would. R. Han., however, interprets the text to mean 'a date tree which casts its fruit,' and which therefore is not cropped three times even in three years. (V. Rashb.)
(11) Viz., that the gathering in of one kind of crop is equivalent to occupation for a year.
(12) The Rabbis differ from R. Ishmael only in requiring three years where he requires one, but they would agree with him as to what constitutes a crop. Hence we may attribute to them the ruling which follows.
(13) 50 cubits square. The reason why ten is taken is because if there are more than ten to the beth se'ah, this constitutes a 'wood', and to plant a field so thickly is not the ordinary way of occupying it. If again there are less, the field is not occupied properly. Cf supra 26b
(14) I.e., though the owner gathered grapes in each set only in one of the three years, he was reckoned as occupying the whole of the field, and so with the other two crops.
Talmud - Mas. Baba Bathra 37a
For did not R. Ishmael lay down that one kind of crop confers a presumptive title to the whole field? So here, one set of ten trees confers a presumptive title to the others, and vice versa.1 This, however, is only the case if the other twenty did not produce [in the other two years]; for if they did produce and he did not take the produce, he obtains no hazakah. And in any case [it is necessary that the trees of which he does take the produce] should be spread about the field.2
[If a man sells a field to two persons, the ground to one and the trees to the other, and] if the one takes possession of the ground and the other takes possession of the trees,3 R. Zebid says that the one becomes legal owner of the trees4 and the other becomes the legal owner of the ground .5 R. Papa strongly objected to this ruling. According to this, [he said,] the owner of the trees has no right whatever in the ground, and the owner of the ground can therefore tell him [when the tree withers], 'Cut down your tree and take it and be gone.' No, said R. Papa, [the law is that] the one becomes owner of the trees and half the ground, and the other of half the ground.
There is no question that if a man sells a piece of ground6 and retains the trees on it for himself, he is entitled to a certain amount of ground [round the trees]. This ruling would be accepted even by R. Akiba, who said [in regard to a field with a well in it] that the seller interprets the terms of the sale liberally.7 For this only applies to a well and a cistern, which do not impair the soil,8 but in the case of trees which do impair the soil9
(1) Lit., 'these... to these and these... to these.'
(2) Lit., 'be divided' (the fruits between the various sets of trees). Because if he takes the produce of ten in one beth se'ah, this is counted as a field by itself, and confers no right to the rest.
(3) By digging or some similar action.
(4) I.e., of the trees only, without any rights in the ground under or round them.
(5) I.e., the ground under the trees and as much round them as is required for tending them (Rashb.).
(6) To one purchaser. V. infra.
(7) Lit., 'he sells with a kindly eye,' i.e., if a man owns a courtyard or a field with a well in it, and sells the courtyard but not the well, he does not ipso facto retain a right of way through the courtyard or the field to the well, but has to pay for it, if required, to the purchaser. V. infra 64a.
(8) There is therefore no danger that he will at some future time be called upon by the purchaser of the field to remove the well; hence it does not occur to him to reserve the ground round it for himself.
(9) Through the spreading of the roots.
Talmud - Mas. Baba Bathra 37b
he would certainly reserve for himself [some of the soil], since otherwise the purchaser can say to him [when the tree withers], 'Pluck up your tree and be gone. If, however, a man sells the trees [in a field1 and retains the ground for himself], in this there applies the dispute between R. Akiba and the Rabbis [viz., whether the purchaser is entitled to any ground round the trees]. According to R. Akiba, who holds that the vendor interprets the terms of the sale liberally, the purchaser is entitled [to such ground]; according to the Rabbis, he is not. That R. Akiba would allow the purchaser such ground would not be questioned even by R. Zebid, who said [in the case mentioned above] that he is not so entitled. For this was only where there were two purchasers, the reason being that one can say to the other, 'Just as I have no share in the trees, so you have no share in the ground.' Here, however, the seller interprets the terms of the sale liberally. That the Rabbis in this case do not allow the purchaser such ground would not be questioned even by R. Papa, who said above that he is so entitled. For this was only where there are two purchasers, the reason being that one [the purchaser of the ground] can say to the other, 'Just as the vendor interpreted the terms of sale generously for you,2 so he did for me.'3 Here, however, the seller interprets the terms of sale strictly.4
The Nehardeans say: [If the thirty trees mentioned above5 are planted] close together,6 the gathering in of their produce does not confer hazakah. Raba strongly questioned this ruling. On this view, he said, how is hazakah to be obtained in a row of clover?7 No, said Raba; [what we should say is that] if a man sells saplings closely planted, the purchaser does not acquire any of the soil.8 R. Zera said: A similar [difference of opinion is found] between Tannaim, [in the following Mishnah]: If a vineyard is planted on less than four cubits,9 R. Simeon says that it is not a vineyard in the legal sense,10 whereas the Rabbis say that it is a proper vineyard, the middle row being regarded as non-existent.11 The Nehardeans say: If a man sells a date tree to another, the purchaser acquires the soil [under it] from its base to the furthest depth.12
(1) The case here discussed is one in which only two trees are sold, since there is no question that the sale of three trees carries with it a certain amount of ground round the trees. V. infra 81a.
(2) By making over the tree and its produce to you in perpetuity.
(3) By allowing me ground under and round the tree.
(4) Lit., 'sells with a malignant eye.'
(5) The text here reverts to the discussion of the subject of the thirty trees.
(6) The 'trees' in question are apparently saplings which are meant to be transplanted.
(7) Which also is planted closely, and with a view to transplanting.
(8) Because they are meant to be uprooted.
(9) I.e., with less than four cubits between the rows of vines.
(10) And corn or other seed sown there does not form kilayim.
(11) Kil. V, 2; v. infra 83a. And similarly in regard to the trees, the Rabbis look upon the middle ones as non-existent, and therefore if the owner sells them the purchaser acquires the soil round them; whereas Raba follows R. Simeon.
(12) And can therefore plant a new one when this one withers.
Talmud - Mas. Baba Bathra 38a
Raba strongly questioned this ruling, on the ground that the seller can say, 'What l sell you is [sold in the same way as] garden crocus;1 pluck up your garden crocus and be off'?- No, said Raba; this is only the case when he is able to plead so expressly.2 Mar Kashisha the son of R. Hisda said to R. Ashi: If the seller did sell him [the tree in the same way as] a plot of garden crocus,3 what was he to do?4 - He should have lodged a protest within three years. For should you not say so,5 then in the case of the 'mortgage of Sura'6 which stipulates that 'on the termination of these [X] years this land shall be given up without payment,' if the mortgagee suppresses the bond and says that he has bought the land, would his plea indeed be valid? Have the Rabbis then made a regulation through which the mortgager is exposed to unfair loss?7 The fact is that he should protect himself by lodging a protest. So here also it is incumbent on him to lodge a protest.
MISHNAH. THERE ARE [IN ERETZ YISRAEL] THREE DISTRICTS [WHICH ARE DISTINCT FROM EACH OTHER8 ] IN THE MATTER OF HAZAKAH - JUDEA, TRANSJORDAN, AND GALILEE. THUS, IF THE OWNER IS IN JUDEA AND THE OCCUPIER IN GALILEE, OR THE OWNER IN GALILEE AND THE OCCUPIER IN JUDEA, THE OCCUPATION DOES NOT CONFER HAZAKAH;9 IT ONLY DOES SO IF THE OWNER IS IN THE SAME DISTRICT10 WITH THE OCCUPIER. R. JUDAH SAYS: THE PERIOD IN WHICH OCCUPATION CONFERS HAZAKAH WAS FIXED AT THREE YEARS ONLY IN ORDER THAT IT MIGHT BE POSSIBLE WHEN A MAN IS IN SPAIN11 FOR ANOTHER TO OCCUPY HIS FIELD ONE YEAR, AND FOR INFORMATION TO BE BROUGHT TO HIM [WHICH WILL ALSO TAKE] A YEAR, AND FOR HIM TO RETURN HIMSELF, [WHICH WILL TAKE] A THIRD YEAR.12
GEMARA. What is the reason of the first Tanna [on which he bases his ruling]?13 If he holds that a protest raised by the owner not in the presence of the occupier is a valid protest, then [it should be valid] even [if the owner is] in Judea and [the occupier in] Galilee.14 If, however, he holds that a protest [raised by the owner] not in the presence of the occupier is not a valid protest, then [it should be equally] invalid even if both are in Judea?15 -R. Abba b. Memel replied in the name of Rab: The first Tanna is indeed of the opinion that a protest raised [by the owner] not in the presence of the occupier is a valid protest, and our Mishnah was formulated at a time when there were hostilities between Judea and Galilee.16 Why then are Judea and Galilee particularly specified?17 - To show us
(1) Which it was customary to uproot after it had ripened, the soil being left to the owner of the field.
(2) That is to say, if he advances this plea, it is accepted (in default of rebutting evidence), even though he has no document to prove it.
(3) I.e., without making any express stipulation.
(4) To prevent the purchaser after three years affirming that he bought the soil also and wants to plant another.
(5) I.e., that such a step is effective.
(6) V. supra p. 159, n. 4'
(7) I.e., the danger of losing his land.
(8) I.e., form self-contained units, as explained in what follows.
(9) I.e., the fact of the occupier having had unchallenged possession of the land for three years does not create a presumption that he is the owner. The reason is discussed in the Gemara.
(10) I.e., Judea, Transjordan and Galilee.
(11) Spain is taken as being the furthest point to which an owner of land in Eretz Yisrael was likely to go.
(12) R. Judah therefore does not hold that the period of three years was fixed because after that a man is not careful of his title-deed (V. supra 29a), nor does he regard Judea, Transjordan and Galilee as self-contained units in the matter of hazakah.
(13) That the three districts are independent.
(14) Because someone is sure to convey information of it to the occupier, and he will be careful of his title-deed if he has one.
(15) But in different towns.
(16) Hence caravans did not travel between them and it was difficult to know in one what was going on in the other.
(17) l.e., why should not the Tanna have formulated his ruling thus: 'All districts of Eretz Yisrael are independent units in regard to hazakah when they are not on peaceful terms.'
Talmud - Mas. Baba Bathra 38b
that Judea and Galilee are normally reckoned to be on hostile terms.1
Rab Judah said: Rab laid down that occupation of the property of a fugitive does not confer hazakah.2 When I related this to Samuel,3 he said to me: Must then the owner [in ordinary cases] make his protest in the presence of the occupier?4 [According to Samuel then,] what did Rab mean to teach us in this ruling? That [as a rule] a protest raised not in the occupier's presence is invalid?5 But [how can this be,] seeing that Rab has laid down6 that a protest raised not in the occupier's presence is valid? - Rab [in making this latter statement] was giving the reason of the Tanna of our Mishnah, but he did not himself concur.
There is another version [of this passage, as follows:] Rab Judah said: Rab laid down that occupation of the property of a fugitive does confer hazakah. When I related this to Samuel, he said: Of course! Do you imagine the protest has to be made in the presence of the occupier? What then does Rab desire to indicate [by this ruling?] That a protest made not in the occupier's presence is valid? But surely this has been laid down by Rab already? - The truth is that this is what Rab wishes to indicate, that even if the owner made his protest in the presence of two men who are not able to report it to the occupier,7 it is still a valid protest.8 For so R. Anan reported: 'It has been expressly stated to me by Mar Samuel that if the protest is made in the presence of two men who are able to report it to the occupier, it is valid, but if of two men who are not able to report it to the occupier, it is not valid. And Rab?9 - [He goes on the principle that] "your friend has a friend and your friend's friend has a friend".'10
Raba said: The law is that it is not permissible to take possession of the property of a fugitive,11 and a protest made not in the presence of the occupier is valid. Are not these two rulings contradictory?-No; the latter relates to a fugitive on account of debt, the former to a fugitive on account of manslaughter.12
What constitutes a protest?-R. Zebid says: If the owner says, 'So-and-so is a robber,' this is no protest.13 If, however, he says: 'So-and-so is a robber who has seized my land wrongfully
(1) I.e., that communication between them is difficult.
(2) Even if the owner makes no protest.
(3) Rab Judah was first a pupil of Rab and when Rab died he studied under Samuel.
(4) Which the fugitive cannot do.
(5) This being the reason why, in the case of the fugitive, the unchallenged occupation does not confer a title of ownership.
(6) V. supra.
(7) E.g., because they are about to go abroad.
(8) And Samuel did not think of this; hence his surprise at Rab's saying something which appeared self-evident.
(9) What is his view?
(10) And therefore if the two persons in whose presence the protest is made are not themselves able to report it, the protest is still valid, as in any case it will eventually reach the ears of the occupier.
(11) Presumably because a protest made not in the presence of the occupier is not valid.
(12) A fugitive on account of debt does not mind his whereabouts being known, so he will not refrain from making a protest, but a fugitive on account of manslaughter will not do this, for fear lest he may be discovered.
(13) Because this constitutes no warning to the occupier to take care of his deed of purchase.
Talmud - Mas. Baba Bathra 39a
and tomorrow I am going to sue him,' this is a protest.1 Suppose the owner says to those to whom he makes the protest, 'Do not tell the occupier,' is this a valid protest?-R. Zebid says, [It is not, because] he has distinctly told them not to tell. R. Papa, however, says [that it is, because] what he meant was, 'Do not tell the occupier, but you can tell others,' and 'your friend has a friend and your friend's friend has a friend.' If the men to whom he made the protest say, 'We will not tell the occupier,' [is it a protest?]-R. Zebid says [that it is not, because] they distinctly say, 'We will not tell him' - R. Papa, however, says that it is, because what they meant was,'We will not tell the occupier himself but we will tell others,' and 'your friend has a friend and your friend's friend has a friend.' If he said to them, 'Don't say a word about this,' [is it a protest?] - R. Zebid says [it is not, because] he has told them not to say a word. If they say to him, 'We will not say a word about it,' [even] R. Papa says [it is not a protest, because] they tell him distinctly, 'We are not going to say a word.' R. Huna the son of R. Joshua, however, says that [it is a protest, because] if a man has no responsibility in regard to a certain statement, he will blurt it out without thinking.2
Raba said in the name of R. Nahman: A protest made not in the presence of the occupier is a valid protest - Raba questioned3 R.Nahman's ruling [on the ground of the following]: R. JUDAH SAYS THAT THE PERIOD IN WHICH OCCUPATION CONFERS HAZAKAH WAS FIXED AT THREE YEARS IN ORDER THAT IT MIGHT BE POSSIBLE FOR A MAN TO BE IN SPAIN DURING THE FIRST YEAR IN WHICH HIS FIELD IS OCCUPIED AND FOR INFORMATION TO BE BROUGHT TO HIM IN THE SECOND YEAR AND FOR HIM TO RETURN HIMSELF IN THE THIRD YEAR. Now if we are to assume, [he said], that a protest made not in the presence of the occupier is a valid protest, why should the man have to come back? Let him stay where he is and make the protest! - There [R. Judah is merely suggesting] as a piece of good advice that he should return and take possession of his land and the produce.I From the fact that Raba questioned R. Nahman's ruling, it would seem that he was not of opinion that a protest made not in the occupier's presence is valid. [How can this be,] seeing that Raba has laid down that a protest made not in the presence of the occupier is valid?4 - He adopted this view after he had learnt it from R. Nahman.
R. Jose b. Hanina once came across the disciples of R. Johanan, and inquired of them whether R. Johanan had ever laid down the number of persons in whose presence a protest must be made. R. Hiyya b. Abba [replied] that R. Johanan had laid down that a protest must be made in the presence of two persons; R. Abbahu, that it must be made in the presence of three persons. May we say that the difference in principle [between R. Hiyya b. Abba and R. Abbahu] is in regard to the dictum of Rabbah son of R. Huna, for Rabbah son of R. Huna said that disparaging remarks made in the presence of three persons
(1) According to R. Han. the warning lies in the threat to go to law; according to Rashb. in the use of the term 'my land'.
(2) And therefore the chances are that they will after all tell.
(3) In spite of the fact that he reported it himself. (3) Because the longer he delays the more trouble he will have to recover the produce; the protest, however, is valid if made abroad.
(4) V. supra p. 168.
Talmud - Mas. Baba Bathra 39b
do not constitute slander?1 The one who says that a protest can be made in the presence of two persons [R. Hiyya bar Abba], we would say, does not accept the dictum of Rabbah son of R. Huna,2 while the one who says that three persons must be present [R. Abbahu] does accept it? - No; both accept the dictum of Rabbah son of R. Huna, and the essential difference between them here is this: the one who says that the protest may be made in the presence of two persons is of opinion that a protest made not in the presence of the occupier is no protest,3 whereas the one who says that three persons must be present is of opinion that a protest made not in the presence of the occupier is valid.4 Alternatively we may reply that both [R. Hiyya b. Abba and R. Abbahu] agree that a protest made not in the presence of the occupier is valid, and the point on which they join issue here is this, that the one who says the protest may be made in the presence of two persons considers that [what] we require [them for is] to provide evidence,5 while the one who holds that three persons must be present considers that [what] we require [them for is to ensure] that the matter should be bruited abroad.
Giddal b. Minyumi had occasion to make a protest [against the occupation of some land of his]. He found R. Huna and Hiyya b. Rab and R. Hilkiah b. Tobi sitting together and made his protest in their presence. A year later he again came to make a protest. They said to him: This is not necessary. Rab has laid down distinctly that if the owner makes a protest in the first year he need not repeat it.6 (According to another report, Hiyya b. Rab said to him: Since the owner made a protest in the first year he need not repeat it.) Resh Lakish said in the name of Bar Kappara: It is necessary to repeat the protest every three years. R. Johanan found this dictum very surprising. Can a robber, he said, obtain a title from continued occupation?7 A robber, do you say? What you should rather say is 'Can one who is like a robber8 obtain a title from continued occupation?' Raba said: The law is that the owner must make a protest at the end of every three years.
Bar Kappara taught: If an owner protests [against the occupation of his land] and [after an interval] repeats his protest a second and a third time,9 if he [always] adheres to his first plea the occupation confers no title, but if he does not then it does confer a title.10
Raba said in the name of R. Nahman: A protest [against the occupation of property] must be made in the presence of two persons
(1) Lit., 'evil tongue'. For the essence of the 'evil tongue' is that the remarks made should not come to the ears of the person disparaged, but if they are made in the presence of three persons they are pretty sure to come to his knowledge.
(2) I.e., he holds that even if made in the presence of only two persons a statement will come to the ears of the person concerned; hence it is sufficient for the owner to make his protest in the presence of two persons.
(3) Hence the question of publicity does not arise, and the two persons are needed only to act as witnesses that the protest has been made by the owner to the occupier.
(4) Hence three persons most be present at such a protest to ensure that sufficient publicity is given to it.
(5) That the protest has been duly made within the specified three years.
(6) Within the next three years, v. infra.
(7) If the rightful owner neglects to protest within a given time.
(8) Since he pleads that he had a deed of purchase and lost it, he can hardly be put on the same footing as a robber. On the other hand, since he cannot produce the deed and continues to occupy the land after the former owner's protest, he is like a robber.
(9) Lit., 'repeats his protest and repeats his protest'.
(10) E.g., if he says on the first occasion 'so-and-so is robbing me of my field,' and on the second occasion 'so-and-so has only taken this field from me on mortgage, not purchased it,' this being a virtual admission that his first plea was false. Hence neither plea is accepted, and the occupier is entitled to the land.
Talmud - Mas. Baba Bathra 40a
, and they are at liberty to write it down without being definitely instructed by the protester to do so.1 A moda'ah2 must be made in the presence of two persons, and they are at liberty to write it down without being definitely instructed to do so.3 An admission of a debt must be made in the presence of two persons, and they must not write it unless definitely instructed to do so.4 A transfer [by means of a cloth]5 must be carried out in the presence of two persons, and they may record it in writing without being definitely instructed to do so.6 For certifying [the signatures of witnesses to] documents7 [a Beth din of] three persons is required.
(The mnemonic [for these is] Mamhak.)8 Said Raba: If I have any difficulty about any of these rulings, it is this: How are we to regard this legal transfer [by means of a cloth]? If it is on a par with a proceeding of the Beth din, then we should require three persons. If it is not on a par with the proceedings of the Beth din, why can it be recorded without the permission of the seller?9 - After posing the question, he himself resolved it. 'In fact a kinyan', he said, 'is not on the same footing as a proceeding of the Beth din, and the reason why the witnesses may record it in writing without definite instructions from the transferor is because a kinyan unless there are instructions to the contrary, is intended to be recorded in writing.'10
Both Rabbah and R. Joseph hold that a moda'ah11 should not be issued save against a man who does not obey the decisions of the Beth din.12 [This is not the opinion of] Abaye and Raba, who said [to one another]: It can be issued even against me and against you.13 The Nehardeans say that a moda'ah
(1) Lit. , 'he need not say, write', because such a document is of advantage to him, and 'an advantage may be conferred on a man without his permission.'
(2) Lit. 'notification': an affidavit made by a man that a sale or a gift which he is about to execute is being forced on him against his will, and that he intends when opportunity arises to take legal steps to annul it.
(3) Because this also is to the advantage of the notifier.
(4) Lit., 'he must say write', because it is a disadvantage to the debtor to have his debt recorded in writing, and 'a disadvantage may not be inflicted on a man without his consent.'
(5) Heb. kinyan. V. p. 6, n. 2 and Glos.
(6) The reason is discussed lower down.
(7) If a document signed by witnesses is brought before a Beth din and the Beth din certifies that the signatures are genuine, no question can subsequently be raised about their genuineness. The Beth din's endorsement was called honpak.
(8) M for mehaah (protest); M for moda'ah (notification); H for hoda'ah (admission); K for kinyan (transfer).
(9) Seeing that it is a disadvantage to him, confirming as it does the title of the transferee. But the proceedings of the Beth Din are of course independent of this rule.
(10) Because by using the kinyan the transferor shows that he is really anxious to make the transfer, since the exchange of the cloth in itself closes the transaction.
(11) V. supra p. 173, n. 2.
(12) Because otherwise the man who issues the moda'ah ought rather to sue him for trying to exercise constraint on him.
(13) Because sometimes it is not easy to bring the matter at once before the Beth din.
Talmud - Mas. Baba Bathra 40b
that does not contain the words 'we, [the undersigned] are cognisant that so-and-so is acting under duress', is no moda'ah. Of what kind of moda'ah are we speaking? If of one relating to a get [bill of divorce] or a gift. [why should the witnesses have to make this declaration, seeing that] it [only states something which] is more or less self-evident?1 If again It is one relating to a sale, has not Raba laid down that we do not issue a moda'ah relating to a sale?2 - [We are] in fact [speaking here of one relating] to a sale, and Raba admits [that such a one may be issued] where the seller acts under [such] constraint as [is exemplified] in the following case. A man mortgaged an orchard to another man for three years. The latter, after he had had the use of the orchard for the three years necessary for hazakah, said to the owner: 'If you will sell it to me, well and good, and if not, I will suppress the mortgage deed and say that I purchased it outright.' In such a case a moda'ah may be issued [on the owner's behalf].3
Rab Judah said: A deed of gift drawn up in secret is not enforceable. What is meant by a deed of gift drawn up in secret? R. Joseph said: If the donor said to the witnesses, 'Go and write it in some hidden place.' Others report that what R. Joseph said was: If the donor did not say to the witnesses, 'Find a place in the street or in some public place and write it there.' What difference does it make which version we adopt? - It makes a difference where the donor simply told the witnesses to write, without saying where.4 Said Raba: Such a deed can serve as a moda'ah in respect of another.5 R. Papa said: This statement attributed to Raba was not actually made by him but is inferred [wrongly] from the following ruling of his. A certain man wanted to betroth a woman, and she said to him, If you assign to me all your property I will become engaged to you, but otherwise not. He accordingly assigned to her all his property. Meanwhile, however, his eldest son had come to him and said, What is to become of me? He accordingly took witnesses and said to them, Go and hide yourselves in Eber Yamina6 and write out [an assignment of my property] to him.7 The case came before Raba, and he decided that neither party had acquired a title to the property. Those who witnessed this proceeding thought that Raba's reason was because the one deed was a moda'ah in respect of the other.8 This is not entirely correct. [The secret gift] in that case [did indeed annul the later assignment] because the circumstances showed that the assignment to the woman was made under constraint. Here,9 however, it is [evidently] the giver's desire that the one [the latter assignee] should obtain possession and not that the other should obtain possession.10
The question was asked [in the Beth Hamidrash]:
(1) In the case of a get or a gift, there is no motive for a man to say that he is acting under constraint unless this is actually the case; hence there is no reason why the witnesses should have independent knowledge of the fact. In the case of a sale, however, it may happen that a man sells something in order to raise money, but with the idea of buying it back as soon as possible, and he may therefore be tempted to issue a moda'ah falsely in order to facilitate this.
(2) Where the sale, though compulsory, would not inflict real loss. V. infra 46a.
(3) Because if he does not sell he will lose the whole. It may be asked here how in such a case can the witnesses obtain independent knowledge that the sale was made under constraint? R. Han. says it can happen in this way. Suppose the witnesses first hear the owner claim the field and the occupier assert that he has bought it. Then the owner tells the occupier that he is willing to sell the field to him, and the latter tells him to draw up a deed of sale, not in his presence. The owner then tells the witnesses, who are thus able to say in the moda'ah that they know that the owner is selling under constraint.
(4) According to the first version such a deed is valid, according to the second it is not valid.
(5) I.e., even though not enforceable itself, it can render a subsequent deed or gift of the same thing invalid.
(6) ['The south side', a suburb of Mahoza, Obermeyer. p. 181].
(7) Before he had made the assignment to the woman.
(8) The deed of assignment to the son, being drawn up in secret, was not itself enforceable, but was able to render invalid the subsequent assignment to the woman.
(9) Where the second assignment is not made under constraint.
(10) As is shown by the fact that the deed of gift is written in secret.
Talmud - Mas. Baba Bathra 41a
What is the rule where the donor does not specify [the place of writing]?1 - Rabina said that we take no account of this;2 R. Ashi said that we do take account of it.3 The law is that we do take account of it.
MISHNAH. THE FACT OF POSSESSION4 IF NOT REINFORCED BY SOME PLEA OF RIGHT DOES NOT OF ITSELF CONFER A TITLE OF OWNERSHIP. FOR INSTANCE, IF A MAN SAYS TO ANOTHER, WHAT ARE YOU DOING ON MY PROPERTY, AND HE REPLIES, NO-ONE HAS EVER SAID A WORD TO ME ABOUT IT, HIS OCCUPATION CONFERS NO TITLE. IF, HOWEVER, HE PLEADS, I AM HERE BECAUSE YOU SOLD THE LAND TO ME, BECAUSE YOU GAVE IT TO ME, BECAUSE YOUR FATHER SOLD IT TO ME, BECAUSE YOUR FATHER GAVE IT TO ME, THEN HIS OCCUPATION CONFERS A TITLE OF OWNERSHIP. AN OCCUPIER BY VIRTUE OF INHERITANCE5 DOES NOT REQUIRE ANY SUCH PLEA.6
GEMARA. [THE FACT OF POSSESSION IF NOT REINFORCED BY SOME PLEA OF RIGHT DOES NOT OF ITSELF CONFER A TITLE OF OWNERSHIP.] Surely this is self-evident? - [The reason for stating it is this] We might say: The land really was sold to this man, and he had a deed and has lost it,and the reason why he pleads as he does is because he thinks that if he says he bought the land he will be asked to produce the deed of sale. Let the Beth din then suggest to him that perhaps he had a deed and lost it, on the principle of Open thy mouth for the dumb.7 The Mishnah therefore tells us [that this is not so].8
R.'Anan's10 field was flooded through the bursting of a dam.11 He afterwards went and restored the fence, [which, however, he built] on land belonging to his neighbour. The latter [on discovering this] sued him before R. Nahman. He said to him: 'You must restore the land.' 'But,' he rejoined, 'I have become the owner of it by occupation?'12 - Said R. Nahman to him: 'On whose authority [do you rely]? On that of R. Ishmael and R. Judah, who both lay down that [if the occupation takes place] in presence of the owner [without protest], it constitutes a title at once. The law however, is not in accordance with their ruling.'13 R. 'Anan thereupon said: 'But this man has tacitly waived his right because he came and helped me to build the fence?' R. Nahman replied: 'This was a waiver given in error. You yourself, had you known that the land was his, would not have built the fence on it. Just as you did not know, so he also did not know.'
R. Kahana's land was flooded through the bursting of a dam. He afterwards went and built a new fence on land which did not belong to him.
(1) I.e., whether the deed of gift was to be written in a secret or a public place. This question was left open above.
(2) I.e., we do not suppose that the donor meant it to be written secretly, and therefore it is enforceable.
(3) And therefore the deed is not enforceable. if however, the gift has been made it cannot be recovered.
(4) For three years in the case of land, etc., immediate in the case of movables.
(5) I.e., one who inherited the land from the previous occupier.
(6) Because he cannot be expected to know how his father came by the property.
(7) Prov. XXXI, 8.
(8) And though the plea is valid if put forward by him, we do not suggest it to him.
(9) [The meaning of this mnemonic is obscure. V. Brull, J. Die Mnemotechnik des Talmuds, 40, and D.S. a.l. for attempted interpretations.]
(10) Var. lec. 'Hanan'.
(11) And the boundary marks were obliterated.
(12) Because the owner has allowed me to remain in possession of it a certain time without protest.
(13) But that of the Rabbis, who say that three years occupation is required to confer a title.
Talmud - Mas. Baba Bathra 41b
He came before Rab Judah, and the other went and brought two witnesses, one of whom asserted that R. Kahana had encroached to the extent of two rows1 and the other to the extent of three rows. Rab Judah said to R. Kahana: Go and compensate the man for two out of the three rows. Said R. Kahana: Who is your authority [for this ruling]?2 [He replied:] Rabbi Simeon b. Eleazar, as it has been taught: 'Rabbi Simeon b. Eleazar states that Beth Shammai and Beth Hillel agreed that if there are two sets of witnesses [to a loan], one of which says [that the loan was for] one maneh and the other [for] two manehs, [their evidence is accepted in respect of the one maneh] because one maneh is included in two. Where they differed was in the case where there is one pair [of witnesses of whom] one says that [the loan was for] a maneh and the other [that it was for] two manehs. In that case Beth Shammai held that their evidence is at variance, whereas Beth Hillel held that two manehs include one.' R. Kahana rejoined: But I can bring you a letter from the West [Eretz Yisrael] to show that the halachah does not follow R. Simeon. To which Rab Judah replied: [Meanwhile my decision can stand] till you bring it.
A certain man lived four years in an upper room in Kashta. One day the owner of the room came and found him there, and said to him: What are you doing in this house? He replied: I bought it from so-and-so who bought it from you. He summoned him before R. Hiyya, who said to the occupier: If you can bring evidence to show that the man from whom you bought the house lived in it even for a single day, I will declare you the owner, but otherwise not. Rab said afterwards [to his disciples]: I was sitting in front of my uncle3 and I said to him, 'Will not a man sometimes buy and sell [a thing] on [the same] night?'4 I noted, however, his agreement in the case where the occupier said, 'The man from whom I bought it bought it from you in my presence;' then his word is accepted, because had he wished he [could have put forward a still stronger plea] by saying, I myself bought it from you. Raba said: The ruling of R. Hiyya is more likely to be right, because the Mishnah says [here], AN OCCUPIER BY VIRTUE OF INHERITANCE DOES NOT REQUIRE ANY PLEA. It is a plea that he does not require, but he does require to bring a proof [that the person from whom he inherited the land occupied it]!5 - Possibly, however, the Mishnah means that he requires neither plea nor proof.6 Or, if you like, I can say that a purchaser is [on a] different [footing from an heir], because he is not likely to have thrown away money for nothing.7
The question was asked [in the Beth Hamidrash:] If the previous owner was seen [on the property],8 what [are we to infer]?9 - Abaye replied: That is just what we mean.10 Raba, [however], said: It is quite possible for a man to measure out his field and not sell it after all.
Three [successive] purchasers of the same field can count as one.11 Rab said: [This is only] if all the purchases were effected by deed.12 Does this indicate that in Rab's opinion a sale by deed becomes generally known but a sale in the presence of witnesses does not become generally known? Surely Rab [himself] has laid down that if a man sells a field [with a guarantee]13 in the presence of witnesses, the purchaser may recover even from property on which there is a lien?14 - In that case the purchasers
(1) Or 'beds'.
(2) That where two witnesses partly agree and partly differ you may accept what is common ground between them.
(3) R. Hiyya.
(4) And therefore why do you demand proof that the man from whom he bought it lived there.
(5) And the same rule should apply to one who occupies in virtue of purchase from a third party.
(6) And therefore Rab may be right.
(7) Viz., to the third party from whom he bought it, unless he had made sure that he had bought it from the original owner. Hence even if we say that an heir requires to bring proof that his father occupied the land, the purchaser from a third party is not required to bring similar proof.
(8) Taking its measurements.
(9) Does this constitute proof that he sold it or not?
(10) I.e., the kind of thing that constitutes 'proof'.
(11) If A occupies a field one year and then sells it to B, who occupies it a second year and then sells it to C, who occupies it a third year, C at the end of the third year can claim ownership in virtue of the three years' occupation.
(12) I.e., B's purchase from A and C's from B. The reason is that such purchases are likely to become known to the original owner, but otherwise they are not likely to become known to him and he may think that the successive occupiers have no intention of claiming the land as their own and therefore does not trouble to protest.
(13) That if the property is claimed by a third party and has to be surrendered to him, he will allow the purchaser to recover the purchase price from any part of his remaining property.
(14) I.e., even from property which the vendor has subsequently mortgaged or sold, the presumption being that the persons who have bought this property from him or taken it on mortgage were aware that there was a lien on his property. This would show that a sale in the presence of witnesses does become known.
Talmud - Mas. Baba Bathra 42a
have only themselves to blame.1
But did Rab indeed give this ruling? Have we not learnt [in a Mishnah]: If a man lends money to another on a bond, he may recover his debt even from property on which there is a lien2 [supposing there are no free assets]; if, however, the loan was made only in the presence of witnesses, he may only recover from property on which there is no lien? And should you answer that Rab is himself [considered] a Tanna and may dispute [the ruling of a Mishnah], this can hardly be, since Rab and Samuel have both laid down that a loan [contracted] by word of mouth3 cannot be recovered either from the heirs [of the debtor] or from those who have [subsequently] purchased [from him].4 - Are you arguing from a loan to a sale? When a man borrows money, he does so as secretly as possible, in order that his property may not depreciate.5 If he sells land, however, he does so as publicly as possible, in order that people may know about it.6
Our Rabbis taught: If the father7 occupies8 [the field] a year and the son two years, or the father two years and the son one year, or the father one year, the son one year and the purchaser9 one year, such occupation confers a title of ownership. Now this would indicate, would it not, that when a man purchases [a piece of land] it becomes generally known?10 But this would seem to conflict [with the following]: If a man occupies a field in the lifetime of the father11 one year and two years in the lifetime of the son, or two years in the lifetime of the father and one year in the lifetime of the son, or one year in the lifetime of the father, one year in the lifetime of the son, and one year in the lifetime of the purchaser,12 such occupation confers a title of ownership. Now if you assume that the purchase [of a piece of land] becomes generally known, surely there can be no protest stronger than this, [that the son has sold the land]?13 - R. Papa said: The case of which this passage speaks is where the son sells all his fields without specifying [any one in particular].14
MISHNAH. CRAFTSMEN,15 PARTNERS, METAYERS, AND TRUSTEES HAVE NO HAZAKAH.16 A MAN HAS NO HAZAKAH IN THE PROPERTY OF HIS WIFE NOR HAS A WOMAN HAZAKAH IN THE PROPERTY OF HER HUSBAND. A FATHER HAS NO HAZAKAH IN THE PROPERTY OF HIS SON NOR HAS A SON HAZAKAH IN THE PROPERTY OF HIS FATHER. THESE STATEMENTS APPLY ONLY TO CASES [WHERE OWNERSHIP IS CLAIMED] ON THE GROUND OF POSSESSION. IN THE CASE, HOWEVER, WHERE LAND IS PRESENTED AS A GIFT, OR OF BROTHERS DIVIDING AN INHERITANCE, OR OF ONE WHO SEIZES THE PROPERTY OF A PROSELYTE,17 OWNERSHIP CAN BE CLAIMED AS SOON AS THE FIRST STEP HAS BEEN TAKEN TOWARDS MAKING A DOOR OR A FENCE OR AN OPENING.
(1) Although the sale of the first property was not generally known, they should have enquired whether there was any lien on the property which they bought subsequently.
(2) Because anyone who lent the borrower money or bought from him subsequently ought to have known that there was already a prior claim on him.
(3) I.e., in the presence of witnesses but without a bond.
(4) Which is equivalent to saying that it cannot be recovered from property on which there is a lien.
(5) As it will if people know that he is pressed for money.
(6) And so he may have more offers. Hence there is no contradiction between the two rulings of Rab.
(7) The man who purchased the field.
(8) Lit., 'eats'.
(9) The man who purchases from the son.
(10) Because otherwise the original owner can say that he did not think that the last occupier intended to claim the land, and therefore did not trouble to make a protest.
(11) The original owner.
(12) The man who purchases from the son.
(13) And if it is not a protest, the reason must be that it does not become generally known.
(14) As in that case the occupier can plead that he understood that the sale did not include the field in question and therefore did not constitute a protest. But if he specifically sells that field, this constitutes a protest, because the sale is bound to come to the knowledge of the occupier, and the occupation therefore confers no title to ownership.
(15) To whom articles are taken for repair.
(16) I.e., the fact of their being in possession of any piece of (movable) property does not in itself constitute any title to ownership, since it is understood that they are left temporarily in possession of property by the rightful owners. V.I. delete 'craftsmen'.
(17) A proselyte who dies without (Jewish) issue has no heirs, and his property after death falls to the first occupier.
Talmud - Mas. Baba Bathra 42b
GEMARA. Samuel's father1 and Levi learnt [from the Mishnah] that a partner has no hazakah, still less a craftsman.2 Samuel, however, learnt that a craftsman has no hazakah, but a partner has.3 Samuel in this is consistent. For Samuel has said that partners have hazakah as against each other and can give evidence in one another's favour4 and can stand to one another in the relation of paid keepers [of their common property].5 R. Abba pointed out the following contradiction to R. Judah in the [burial] cave of R. Zakkai's field: Did Samuel really say that a partner has hazakah? Has not Samuel said that a partner is regarded as having freedom of entry6 [into the whole of the joint property], and is not this equivalent to saying that a partner has no hazakah [against the other partner]?7 - [He replied:] There is no contradiction. In the one case [Samuel is speaking of a partner] who takes possession of the whole [of the joint field], in the other of one who takes possession of only half of it.8 [To the question which is which,]9 some answer one way and some the other.10 Rabina said: In both cases [Samuel is speaking] of a partner who takes possession of the whole [of the joint field], but still there is no contradiction, because in the one case he speaks of a field which has to be divided [if either partner demands]11 and in the other of a field which has not to be divided [if either partner objects].12
[To revert to] a previous text: 'Samuel said that a partner is regarded as having freedom to work the whole of the joint property.' What does this tell us? That a partner has no hazakah? Why does he not say distinctly that a partner has no hazakah? - R. Nahman said in the name of Rabbah b. Abbuha: [He chooses the other mode of expression] to show that the partner is entitled to a full half of the mature produce13 in a field that is not meant for plantation in the same way as he would be in a field meant for plantation.14
Partners may give evidence in one another's favour.
(1) Abba b. Abba.
(2) Because unlike the partner he never had any share in the property. Evidently therefore they omitted the word 'craftsmen' from the Mishnah (Rashb.).
(3) Because the fact that he has been left in undisturbed possession of the whole of the joint property constitutes a presumption that the other partner has made over to him his share.
(4) Not being regarded as interested parties even where the matter in dispute is a part of the joint property.
(5) If some of the joint property is stolen while in possession of A, B can claim from him restitution of his share in the same way as he could claim from someone in whose charge he had placed it for a fee, A's 'fee' being constituted by B's willingness to take charge of it with the same responsibility for a similar period.
(6) I.e., permission from the other partner to work the whole of the joint field for his own benefit.
(7) Because this permission naturally does not mean any waiving by the other partner of his title to his share of the property.
(8) Viz., the better half, and afterwards he maintains that a division has been actually effected and that this half belongs to him.
(9) I.e., which kind of partner, according to Samuel, has hazakah and which has not.
(10) Some say that by taking possession of the whole field the partner acquires hazakah, because it is not usual for the other partner to allow this, and that by taking possession of one half, even the better half, he does not acquire hazakah, because one partner will often allow the other to do this several years running. Others say that by taking possession of the whole a partner does not acquire hazakah because it is the custom of joint owners that each should occupy the whole property several years running, but by taking possession of one particular half he does acquire hazakah because the presumption is that had the field not been divided he would not have confined himself to this particular half.
(11) I.e., a field which allows of four cubits square being assigned to each. Possession of such a field confers hazakah since, as there is room for both, one partner is not likely to allow the other to occupy the whole for several years running.
(12) I.e., a plot too small to allow of four cubits being assigned to each partner. In this case it would be natural for each partner to work the whole plot several years running, and therefore possession of the whole does not constitute a title of ownership.
(13) Lit., 'improved value that reaches the shoulders,' or 'improved value that is dealt with by the carriers.' The exact meaning of the expression is obscure; it obviously refers to the improved value of trees as opposed to the improved value of land, but there is a difference of opinion as to whether all fruit trees are included, or only those that need careful tending, like vines. V. Tosaf. s.v. שבח המגיע לכתפים
(14) If a man plants another man's field without the latter's permission, he is entitled to the whole of the 'mature produce that reaches the shoulders,' but only on condition that the field was meant for plantation and not for sowing. Otherwise he can recover no more than his outlay. If, however, he has the consent of the owner, he takes the whole of the produce in any case. Samuel here tells us that the partner in this respect is on the same footing as the metayer who works the field with the owner's consent.
Talmud - Mas. Baba Bathra 43a
How so? Are they not interested parties?1 - We are assuming here that the one [who gives evidence] makes a written declaration stating: I have2 no claim on this field. And suppose he does make such a declaration, what does it matter, seeing that it has been taught: If a man says to another,3 I have no claim on this field, I have no concern in it, I entirely dissociate myself from it,4 his words are of no effect?5 - We are assuming here that the other partner obtained from him a formal transfer.6 And suppose he does obtain from him a formal transfer, what does it matter? The other can still keep it safe for his own creditor,7 as we learn from the statement of Rabin b. Samuel, who said in the name of Samuel: If a man sells a field to another [even] without accepting responsibility,8 he cannot give evidence as to the latter's title, because he may [want to] keep it safe for his own creditor?9 - We are assuming that he has accepted responsibility [towards his partner]. Responsibility in respect of whom? If we say, responsibility in general,10 then all the more would he prefer it [to be in the hands of the partner, and he is therefore an interested party]! - We must therefore say, responsibility in respect of his own debt.11
And suppose the partner does renounce his interest in the property, does he do so sincerely?12 Has it not been taught: If a scroll of the Law belonging to the inhabitants of a town has been stolen, the judges of that town must not try [the alleged culprit] nor can the inhabitants of the town give evidence [against him]?13 Now if a partner can renounce his interest, why cannot two of the townspeople renounce their interest in, the scroll and try [him]?14 - A scroll of the Law is different, because it is for public reading.15 Come and hear: If a man says: Distribute a maneh to the inhabitants of my town [and it is stolen], the judges of that town must not try [the alleged culprit] nor may the inhabitants give evidence against him. Why [should this be]? Cannot two of them renounce their share in the gift and try him? - Here too [we are dealing with] a scroll of the Law.16 Come and hear: If a man says: Distribute a maneh to the poor of my town [and it is stolen, the alleged culprit] is not to be tried by the judges of that town and the inhabitants of that town cannot give evidence in the case. What! Do you imagine then that, because the poor receive, the judges are to be disqualified?17 What therefore you mean to say is this: the case must not be tried by the poor judges of that town, nor may the poor of the town give evidence. Why now should this be? Cannot two of them renounce their share and try the case? - Here too we [are dealing with] a scroll of the Law, and the reason why the donor designated the recipients as 'poor' is because all are poor in respect of a scroll of the Law. Or if you like again I can indeed say that the poor literally are meant ' and the particular poor referred to are those whose support devolves on the judges.18 How are we to understand this? If there is a fixed levy,19 let two of them give their contribution and then try the case.20 We assume therefore that there is no fixed levy.21 Or if you like I can say that there is indeed a fixed levy, yet still the rich are pleased [that the maneh should be given to the poor], because after all there is a surplus.22
[Samuel said above that partners] may stand to one another in the relation of paid keepers of their common property.
(1) Lit., 'in contact with their evidence'.
(2) I.e., I shall henceforth have.
(3) I.e., his partner.
(4) Lit., 'My hands are removed from it.'
(5) Because all these expressions refer properly to something which has yet to accrue to a man, but he cannot divest himself of his ownership of something which he already possesses until he says expressly to the donee, 'I make the field over to you,' or words to that effect.
(6) Lit., 'they acquired it from his hand' (by a kinyan sudar).
(7) If A has borrowed money from C on the security of his share in a field and then makes over his share to his partner B, it is to his interest that the field should be recognised as belonging to B rather than to any other person, so that C may seize the mortgaged part of the field in consideration of the debt and A will thus be saved from becoming a defaulter. Hence if B's title to the field is contested, A is an interested party and cannot give evidence in B's favour, although he has himself formally renounced all share in the field.
(8) That if the field is seized on account of a debt which he has previously contracted, he will refund the purchaser his money.
(9) At the time when the creditor claims the repayment of the loan.
(10) E.g., in respect of one who claims the land as having previously belonged to himself or his father, and not merely of a creditor.
(11) As explained above in note 3 . In this case, if he does not wish to become a defaulter, he must either pay his creditor or compensate his partner. Hence it makes no difference to him whether the land remains in the hands of his partner or not, and therefore his evidence is admissible.
(12) Lit., 'does he renounce it'. Even if he transfers the property to the partner in such a way as to make his renunciation apparently complete (as explained above), is there not still the possibility of collusion between him and the partner, so that his evidence would still be inadmissible.
(13) Because all the townspeople have a share in the scroll and are therefore interested parties.
(14) Which shows that renunciation cannot be made by the process described above.
(15) And therefore none of the townspeople can entirely divest himself of his interest in it, unless he leaves the town.
(16) I.e., the gift was made for purchasing a scroll, and therefore none of the townspeople can entirely divest himself of his interest in it, unless he leaves the town.
(17) This question relates to the form of the statement just made, which contains a manifest absurdity, and is therefore corrected in the next sentence.
(18) Who are presumably wealthy.
(19) On the rich for the support of the poor.
(20) For then they are no longer interested in the donation.
(21) But money is collected from the rich as occasion arises. Hence as long as the donation is in existence they have an interest in it.
(22) Lit., 'since there is something over, there is something over', and for the time being they are not called on to pay.
Talmud - Mas. Baba Bathra 43b
Why should this be, seeing that this is a case of keeping with the owner present?1 - R. Papa replied: [Samuel's rule applies] where one said to the other, You keep [the whole property for me] today and I will keep it [for you] tomorrow.2
Our Rabbis taught: If a man sells to another a house or a field, he is not allowed to testify to the latter's title to it3 because he is responsible to him for it.4 If, however, he sells him a cow or a garment, he can testify to his title to it, because he is not responsible to him for it. Why should the rule in the second case be different from that in the first? - R. Shesheth said: The first rule [applies to a case where, for instance,] Reuben wrongfully takes a field from Simeon and sells it to Levi, and then Judah comes and contests Levi's title, Simeon then must not go and give evidence in favour of Levi, thinking that [if Levi retains it] it will be easier for him to recover it.5 But if he has once testified that it belongs to Levi, how can he recover it from him?6 - [We suppose] that what he will say [in evidence] is, I know that this field does not belong to Judah.7 But cannot he recover it from Judah by means of the same proofs by which he recovers it from Levi?8 - He says: It is easier for me to deal with the second [Levi] than with the first [Judah].9 Or if you like I can reply that both [Simeon and Judah] have witnesses [to prove their title], and the Rabbis have laid down that in such cases the land shall remain in possession of its present owner.10
(1) According to Tosaf, we must suppose that both commenced to keep watch over the property together. Hence at the beginning each was in the position of a man taking charge of an article while the owner is still with him, and in such a case the keeper, even if he receives a fee, is not responsible even if the owner subsequently departs (cf. Ex. XXII, 1 5, and B.M. 95a).
(2) I.e., they made a special stipulation that each should be responsible in turn.
(3) Supposing that a third party claims it from him.
(4) The meaning of this is discussed later.
(5) I.e., he may consider that he has a better chance of recovering it from Levi (from whom he may claim it as having been purchased from a robber) than from Judah, and therefore he has an interest in testifying on Levi's behalf.
(6) And so how can he think any such thing?
(7) Without committing himself to the statement that it belongs to Levi.
(8) E.g., if Judah has claimed the property on the ground that Reuben sold it to him. In that case we should think there can be no objection to Simeon's testifying that Reuben sold the field to Levi, because even if the field is ultimately assigned to Judah, Simeon can recover it from him on the ground that Reuben took it from him (v. Tosaf. s.v. כגון דאית ליה).
(9) Lit., 'the first is easy for me, the second difficult'.
(10) And therefore, if the land is once assigned to Judah, Simeon will not be able to recover it from him. Hence if Judah claims it from Levi (from whom Simeon can certainly recover), Simeon must not give evidence against him.
Talmud - Mas. Baba Bathra 44a
But [if the explanation of R. Shesheth is correct],1 why should the rule not be stated in reference to the robber himself?2 - Because It was necessary to state the second clause [viz.]: 'if he sells him a cow or a garment.' For in this case the selling is essential, in order that there may be both giving up [on the part of the original owner] and change of ownership,3 but if the robber does not sell the article, since in this case the original owner may still recover it, he may not give evidence.4 Hence in the first clause also the 'selling' is inserted. But [is this rule sound in regard] even to the second clause? Granted that the original owner abandons his claim to the article itself, he has not abandoned his claim to the money, has he?5 - The rule requires to be stated to cover the case where the robber has died, as we have learnt: If a man robs [someone of food] and gives it to his children to eat or bequeaths it to them, they are not under obligation to repay it. But [if this explanation is correct], why should not the rule be stated in reference to the heir [of the thief]?6 It is true, there is a reason [why it should not] if we accept the opinion that the ownership of an heir [of a thief] is not on the same footing as the ownership of a purchaser [from a thief],7 but on the view that the ownership of the heir is on the same footing as the ownership of the purchaser, what are we to say? And Abaye finds yet another difficulty [in the explanation of R. Shesheth, viz. that the expressions] 'because he is responsible for it,' 'because he is not responsible for it' [are on this theory improperly used,8 and] the Baraitha should say, 'because it may be recovered by him', 'because it cannot be recovered by him'? - We must therefore [understand the above rulings] in the light of the dictum enunciated by Rabin b. Samuel in the name of Samuel, viz. If a man sells a field to another [even] without [accepting] responsibility, he cannot give evidence as to the latter's title, because he can keep it safe for his own creditor.9 This applies only to a house or a field, but in the case of a cow or a garment, not only is there no question
(1) That we are dealing with a case where the land has been stolen.
(2) I.e., that Simeon must not testify to the title of Reuben himself if it is challenged by a third party. The rule in fact should be stated thus: If a man wrongfully seizes a house or a field, the original owner must not testify on his behalf because the thief is responsible to him for it.
(3) If a man is robbed of something (other than land), he does not lose his claim to it until (a) he has given up hope of recovering it, and (b) it has changed hands. Hence until the cow or the garment is sold, Simeon still has an interest in it and therefore is debarred from giving evidence. But in the case of land, a man never loses his claim, and therefore even if the land has been sold, Simeon may not give evidence.
(4) In favour of one who has obtained it from the robber, if his title is contested by a third party.
(5) He still has a claim on the thief for the value of the article, and is therefore still an interested party.
(6) Viz., in the following form: 'If a man robs another of a house and bequeaths it to his son, the original owner cannot testify etc. . . . if he robs him of a cow and bequeaths it. . . etc.'
(7) I.e. , that inheritance does not constitute 'change of ownership' and that an heir is liable so long as the article stolen is in his possession and the original owner has not given op hope of recovery, and therefore the owner would be an interested party even in the case of a cow, etc.
(8) According to the explanation of R. Shesheth, the expression here means that the purchaser (Levi) is responsible, but elsewhere it invariably means that the seller is responsible.
(9) V. supra p. 184, n. 3.
Talmud - Mas. Baba Bathra 44b
that [if he sells them without] having declared them security [to a creditor], the creditor has no lien on them1 (the reason being that they are movables, and movables cannot be mortgaged to a creditor; and even if the debtor gives a written promise to pay 'from the coat on his back', that is only binding so long as they are actually there but not if they are not there) , but even if he did declare them to be security, the creditor still has no lien on them.2 The reason is to be found in the dictum of Raba, for Raba said: If a man declares his slave security for a debt, and then sells him, the creditor can seize him [in satisfaction of the debt], but if he declares his ox or his ass security for the debt and then sells it, the creditor cannot seize it [in payment of the debt],3 the reason being that the former [the hypothecating of a slave] becomes generally known, but the latter [that of an ox or an ass] does not become generally known.4 But is there not a possibility5 that he [the seller] mortgaged to him [the creditor] movables along with landed property,6 and Raba has laid down that if a man mortgages to another movables along with landed property, the latter acquires a lien over the land and acquires one over the movables also7 (providing - R. Hisda adds - he inserts in the bond the words,'this bond is no mere asmakta8 or draft form')? - We assume here that the seller sold [the cow or the garment] immediately after himself acquiring it.9 But is there not still a possibility that this is a case where [the seller has given his creditor a bond on movables which] he will hereafter acquire,10 and may we not learn from this fact11 that if [a man gives his creditor a bond on movables which] he is hereafter to acquire, and then acquires them and sells them or acquires them and bequeaths them, the creditor has no lien on them?12 - This,13 however, was only meant to apply to the case where the witnesses say, We know that this man never owned any land.14
But has not R. Papa said: Although the Rabbis have laid down that if a man sells his field to another without a guarantee15 and his creditor comes and seizes it, the purchaser cannot recover [the price of the field] from him, yet if it is found that the field did not belong to him, he can recover?16 - In this case we suppose that the purchaser recognises the ass [he bought] as being the foal of an ass belonging to the seller.17 R. Zebid, however, says that even if it is found that the field did not belong to the seller, the purchaser cannot recover from him, because he can say to him, That was precisely why I sold to you without a guarantee.
[To revert to] the above text, 'Rabin b. Samuel said in the name of Samuel: If a man sells a field to another without [accepting] responsibility, he cannot give evidence as to the latter's title, because he can keep it safe for his own creditor'.18 How can this be?
(1) And therefore the seller who is also the debtor has no special interest in confirming them in the possession of the purchaser and so can testify on his behalf.
(2) And therefore the seller can still testify on the purchaser's behalf.
(3) Therefore the seller, since he knows that his own creditor cannot seize the ox or ass in question, has no special interest in their retention by the man to whom he sold them, and therefore he may testify on his behalf if his title to them is challenged by a third party.
(4) And therefore it is not fair that the purchaser should be penalised.
(5) Lit., 'Let us apprehend perhaps'.
(6) I.e., he gave his creditor a lien on his landed property along with the movable property contained therein.
(7) Therefore if the borrower afterwards sells the movables, the creditor can distrain on them in the same way as on the land.
(8) אסמכתא Lit., 'assurance': a statement by a debtor on paying part of his debt that if he does not pay the rest by a certain time he will again become liable for the whole. Such a declaration has no legal force.
(9) And therefore we are quite certain that he did not mortgage it for a debt of his own. Hence he may testify to the purchaser's title, as he has no personal interest in the matter.
(10) I.e., when borrowing the money, he has given the lender the right to recover from his land and all the movables which it contains or shall hereafter contain.
(11) That we disregard this possibility.
(12) This question is discussed infra 157a and left undecided.
(13) That we disregard the possibility of the seller having mortgaged movables along with landed property.
(14) In this case the movables cannot be mortgaged, and there is no objection to the seller giving evidence on behalf of the purchaser.
(15) That he will make restitution if the field is attached by a third party.
(16) Hence if the cow or the ass is claimed from the purchaser by a third party who proves that it was stolen from him, the purchaser can recover from the seller, and it is therefore to the latter's interest that it should remain in his possession and he cannot testify on his behalf.
(17) And similarly with a garment, that it was woven in his house. This is tantamount to an admission on his part that the animal or garment did belong to the seller, and after such an admission he cannot claim restitution from him.
(18) V. supra p. 184
Talmud - Mas. Baba Bathra 45a
If he has other land, the creditor can seize that.1 If he has no other land, what advantage has he [from the land remaining in the hands of the purchaser]?2 - The rule actually applies to the case where he has no other land, and the reason for it is that the seller is anxious if possible not to be a defaulter.3 But when all is said and done, he does become a defaulter in respect of the purchaser? - [The rule is still sound] because he says: It was for this very reason that I sold it to you without a guarantee.4
Raba [or some say, R. Papa] issued a proclamation: [Know] all you that go up [to Eretz Yisrael] or go down [to Babylon] that if an Israelite sells an ass to a fellow-Israelite and a Gentile comes and forcibly takes it from him,5 it is the duty of the first to help him to rescue It.6 This, however, only applies if the purchaser cannot recognise the ass as the foal of the seller,7 but if he can recognise it as the foal of the ass of the seller, [he need] not [help him].8 Further, we only say [that he has this duty] if the non-Jew does not forcibly take the saddle along with the ass,9 but if he takes the saddle along with the ass, [we do] not [say so]. Amemar said: Even without all these qualifications he need not help him, because generally speaking the heathen is a grabber,10 and so Scripture says of them, Their mouth speaketh vanity and their right hand is a right hand of falsehood.11
A CRAFTSMAN HAS NO HAZAKAH. Rabbah said: This rule was meant to apply only to the case where the owner delivered the article to the craftsman in the presence of witnesses, but if he delivered it to him without any witnesses being present, since he [the craftsman] is able to plead [without fear of contradiction] that the transaction never took place at all,12 if he puts forward [the more probable] plea that he has purchased it [from the claimant]13 , his plea is accepted.14 Said Abaye to him: If that is so,15 then even [if he has delivered it to him] in the presence of witnesses, since he is able to plead 'I have returned it to you',16 if he only pleads 'I have bought it', his word should certainly be accepted! Rabbah replied: Is it your view
(1) Lit., 'he (the creditor) will come back on his (the debtor's property.
(2) Because even if the purchaser has to give up the land, the seller has no assets from which he can obtain restitution.
(3) Lit., 'a wicked man who borrows and does not repay.' Ps. XXXVII, 21.
(4) I.e., so that if it is taken from you I shall not be called a defaulter, even if I do not make restitution.
(5) On the ground that it was stolen from him.
(6) By convincing the Gentile that it is not his. If, however, a Jew forcibly takes it, the seller need not help the purchaser, because the latter can summon the Jew for assault, even if the ass did rightly belong to him.
(7) And therefore should he go to law with the Gentile, he will not be able to prove that the animal is not his.
(8) Because he will be able to recover the ass from the Gentile by process of law.
(9) Because this is a sign that he only desires to assert his right, but if he takes the saddle as well, the presumption is that he is a robber, and can be proved so in a court of law.
(10) And he is likely therefore to have no case in a court of law.
(11) p. 5, CXLIV, 8.
(12) But that either he never had the garment or it was given him by someone else.
(13) Lit., 'It is purchased in my hand.'
(14) According to Rabbah, therefore, the essential point is whether the article was originally transferred in the presence of witnesses, and it makes no difference whether the owner has or has not seen it in the hands of the repairer.
(15) Viz., that the fact of his seeing it in his hands makes no difference.
(16) If it has not been seen in his possession.
Talmud - Mas. Baba Bathra 45b
that if a man entrusts an article to another in the presence of witnesses, the latter need not return it in the presence of witnesses?1 This is quite wrong;2 if a man entrusts an article to another in the presence of witnesses, he must return it in the presence of witnesses.3
Abaye raised an objection [to this from the following]: If a man sees his slave in the possession of a craftsman or his garment in the possession of a fuller, and says to him: 'How comes this with you?' [and the other replies:] 'You sold it to me,' or, 'You made a present of it to me,' his plea is of no effect. [If he says], 'In my presence you told him to sell it or to give it to me,' his plea is valid. Why is the ruling here different in the second case and in the first?4 - Rabbah explains that the second ruling refers to the case where the slave or the garment is in the hands of a third party who says to the claimant: 'In my presence you told him [the craftsman] to sell it [to me] or to present it as a gift.' In such a case, since if he chose he could plead 'I bought it from you,' when he merely pleads 'In my presence you told him to sell it,' his plea is certainly accepted. Now5 the first ruling refers to the case where the claimant 'sees' [the article in the craftsman's possession] . What are the circumstances? If there are witnesses [that he entrusted the article to the craftsman], let him bring the witnesses and obtain possession.6 We must suppose therefore that there are no witnesses, and nevertheless if he sees the article he can seize it?7 - [Rabbah replies]: No; the case is in fact one where [the article has been entrusted] in the presence of witnesses, but we must suppose also that the claimant sees it [in the possession of the craftsman].8 But, [said Abaye,] you yourself said that if a man entrusts an article to another in the presence of witnesses he must return it in the presence of witnesses? - Rabbah replied: I retract [this opinion].
Raba sought to confute [Abaye and] to support Rabbah [from the following]: If a man gives his garment to a workman [to repair], if the workman says, You undertook to give me two [zuzim] and the owner says,I only undertook to give you one, then as long as the garment is in possession of the workman, it is for the owner to bring proof; if the workman has returned it, then if the prescribed time has not yet elapsed9 he can take an oath and recover his claim,10 but if the prescribed time has elapsed, then the rule applies that the onus probandi is on the claimant.11 Now what are the circumstances? If [the owner gave the garment to the workman] in the presence of witnesses, then let us see what the witnesses say.12
(1) Because only on this supposition would his plea that he has bought it be valid, this plea itself being only a modified form of the plea 'I returned it to you'.
(2) Lit., 'It cannot enter your mind.'
(3) Therefore he cannot plead, 'I returned it to you,' nor, consequently, 'I bought it'.
(4) This question refers to the meaning of the above dictum; its bearing on the argument comes later.
(5) Lit. , 'At all events'. Abaye's objection is now stated.
(6) Since according to you (Rabbah) the craftsman cannot plead that he returned it unless he had witnesses to that effect.
(7) Which shows that the 'seeing' is the essential point, and not the delivery in the presence of witnesses.
(8) Rabbah now lays down that two conditions must be fulfilled if the craftsman is not to have hazakah - the delivery in the presence of witnesses and the 'seeing'.
(9) I.e., if the sun has not yet set. V. Deut. XXIV, 15.
(10) In a dispute about wages between an employer and a workman, if there is no evidence on either side, the word of the workman if given on oath is accepted.
(11) I.e., the workman. V. B.M. 112b; Shebu. 46a.
(12) Presumably the witnesses also were aware of the payment stipulated.
Talmud - Mas. Baba Bathra 46a
We must suppose therefore that there were no witnesses, and the ruling stated is that the word of the workman is to be taken;1 since he is able to plead that he has bought it,2 his word is taken as to his payment. - [To which Abaye answers]: No. The case, in fact, is one in which there were no witnesses [to the original transfer] ' but we suppose that the owner has not seen it [in the hands of the workman].3
R. Nahman b. Isaac raised an objection [against Rabbah's opinion from the following]: A CRAFTSMAN HAS NO HAZAKAH, from which we infer that other persons have hazakah [in such a case]. In what circumstances? If there are witnesses [who saw the article transferred], why have other persons hazakah?4 We must suppose therefore [that the rule applies to the case] where there are no witnesses,5 and yet it is laid down that a craftsman has no hazakah! This refutation of Rabbah is decisive.
Our Rabbis have taught: If a man receives another person's articles [of clothing] instead of his own from the workshop [where they have been sent for repair etc.], he may use them until the other comes and claims them.6 If they have become exchanged in the house of a mourner or at a party he must not use them, [but must keep them on one side] until the other comes and claims them. Why should the ruling in these two cases be different?7 - Rab said: I was sitting before my uncle8 and he said to me, It is no unusual thing for a man to say to the workman, Sell my garment for me.9
R. Hiyya the son of R. Nahman said: This rule holds good only where the workman himself [gave him the coat], but not if it was given him by his wife or his sons.10 And even so he must not use it11 unless the workman says, Here is a garment,' but if he says, 'Here is your garment,' he must not use it, because this is not his garment.
Abaye said to Raba: Come and I will show you a trick of the sharpers of Pumbeditha. A man will say [to his tailor], 'Give me back my cloak [that I gave you to repair].' The other will deny all knowledge of the matter.12 'But,' the owner will say, 'I can bring witnesses [to declare] that they saw it in your possession'. 'That was a different one,' he will reply. The owner will then say to him, 'Bring it out and let us see.' To which he will reply. 'To be sure! I don't bring it out.'13 Raba said to him: That is very clever of him,14 seeing that
(1) Where the garment has not yet been returned.
(2) Even though it has been seen in his possession, as Rabbah ruled in the case above.
(3) And therefore no inference can be drawn from this case to the one above.
(4) Seeing that they cannot plead that they bought it, supposing that it is seen in their possession, for if it is not so seen, then the workman also has hazakah.
(5) So that they can plead that they bought it.
(6) Because we assume that the workman gave them to him purposely. V. infra.
(7) Lit., 'Why this difference between the first and latter (clauses)?'
(8) R. Hiyya.
(9) Hence it is possible to suppose that the tailor by mistake sold another man's coat and then gave that other man one to go on with until he should recover it, and since the tailor acted knowingly he may use it.
(10) Because the presumption is that they made a mistake.
(11) Lit., 'we do not say'.
(12) Lit., 'there were no such matters'.
(13) As if to say, 'I refuse to show you someone else's property.' Herein lay the deceit.
(14) Viz., to say that he knows nothing about the matter, and not to plead that he has bought it, since then the fact that it or one like it has been seen In his possession would militate against him. V. Tosaf. s. v. שפיר
Talmud - Mas. Baba Bathra 46b
the rule laid down1 is that the owner must see it [in the hands of the craftsman].2 Said R. Ashi: If he [the owner] is clever, he will procure a sight of it by saying to the tailor, The reason why you are keeping back the coat is because I owe you money, is it not? Why not then bring it out and have it valued so that you can take what is yours and I can take what is mine?3 R. Aha b. R. Awia said to R. Ashi: The tailor can say to him, I do not require your valuation, it has already been valued by the people before you.4
A METAYER HAS NO HAZAKAH. Why so, seeing that at first he took only half [the produce]5 and now [for three years] he has taken the whole?6 - R. Johanan said: We are speaking here of hereditary metayers.7
R. Nahman said: A metayer who instals other metayers8 in his place has hazakah, because a man will not usually allow metayers to be installed in his field and say nothing.
R. Johanan said: A metayer who assigns parts of his field to other metayers9 has no hazakah. Why so? Because we may presume that permission was given him to do so.10
R. Nahman b. R. Hisda sent [an inquiry] to R. Nahman b. Isaac [saying]. Would our teacher [be so good as to] instruct us, whether a metayer can testify [to the title of his employer]11 or not. R. Joseph was sitting before him, and said to him: Samuel has definitely laid down that a metayer may so testify. But it has been taught that he may not testify? - There is no conflict of opinion. In the one case [we suppose] that there is produce on the land,in the other that there is no produce on the land.12
Our Rabbis taught: A surety may testify on behalf of the borrower,14 provided that the borrower has other land [besides that which is being claimed from him.]15 A lender may testify on behalf of a borrower,14 provided that the borrower has other land [besides that which is being claimed from him].16 A first purchaser may testify on behalf of a second purchaser,17 provided that the latter has other land18 [besides that which is being claimed from him].19 [
(1) Supra 45b.
(2) And since he has not seen it (and the witnesses are not sure that the one they saw was the same) he cannot invalidate the other's plea that he knows nothing about it.
(3) I.e., take the coat in payment of the debt and give me the surplus.
(4) And I know it is not worth any more than the sum you owe me.
(5) This being the condition on which the field is transferred to him.
(6) And therefore there is a presumption that he purchased the field.
(7) Who take the whole produce for three or more years and then give the whole to the owners for the same number of years.
(8) And does not himself work with them.
(9) And himself works with them.
(10) And therefore the owner saw no need to raise a protest. This is the rendering of Rashb. The Aruch renders, 'The owner regards him simply as an overseer,' and therefore saw no need to protest.
(11) Supposing that it is contested by a third party.
(12) If there is produce on the land, then if the land is assigned to the claimant the metayer will lose his share in it; hence he is an interested party and must not give evidence on behalf of his employer. If, however, there is no produce on the land, it is a matter of indifference to him to whom the land is assigned, as he will always be able to find employment.
(13) A ='Areb (surety); M = Malveh (lender); L = Loveh (borrower); K = Kablan (go-between).
(14) In regard to land claimed from him by a third party.
(15) Because in that case, even if the land is assigned to the claimant, the borrower will still have land on which the creditor can distrain if he fails to pay his debt, and the surety will not feel himself jeopardised; hence he is not an interested party.
(16) The same reason applies as to the surety.
(17) E.g., if A has sold land to B and then sold other land to C, and C's title is contested by a third party. then B may testify on behalf of C.
(18) I.e., which he has bought from A.
(19) The rule is that if a creditor has a lien upon land which his debtor has sold, he must seize first the land which the debtor has sold last. Hence in this case, if A's creditor is authorised to seize land which he has sold to others, he cannot seize the land sold to B until he has first seized the land sold to C. Hence if more land has been sold to C than that actually claimed from him, B is not an interested party and may give evidence on his behalf. Similarly B may give evidence on behalf of A himself if he possesses other land besides that which is being claimed from him, and the rule might have been stated in the form 'the purchaser may testify on behalf of the seller', etc.
Talmud - Mas. Baba Bathra 47a
In regard to a go-between,1 some say that he may testify [on behalf of the borrower] and some say that he may not. Those who say that he may testify regard him as being on the same footing as a surety, whereas those who say that he may not [consider] that he prefers fields of both qualities2 to be in the hands of the borrower, so that the creditor can have the choice of seizing from either.3
R. Johanan said: A craftsman has no hazakah, but the son of a craftsman has hazakah.4 A metayer has no hazakah, but the son of a metayer has hazakah. Neither a robber nor the son of a robber has hazakah, but the grandson of a robber has hazakah. How are we to interpret this? If [we suppose that] they base their title [solely] on [the possession of] their father, then the son of a craftsman and the son of a metayer should also not have hazakah.5 If again they do not base their title on [the possession of] their fathers [but on claims of their own].6 then the son of a robber should also [have hazakah]? - [They do base their title on the possession of their fathers], and our rule applies to the case where witnesses declare: The claimant admitted to him [the father] in our presence [that he had sold the land to him].7 In the case of the others [the son of the craftsman and the metayer and the grandson of the robber] the presumption is that they are telling the truth, but in the case of the son of the robber, even though he [the claimant] admits [he sold it to [the father] we do not believe him, on the ground put forward by R. Kahana, that if he did not admit this, the other would hand him and his ass over to the town prefect.8
Raba said: There are occasions when even the grandson of a robber also has no hazakah, as for instance when he bases his title on the possession of his grandfather. What sort of man is meant here by 'robber'? - R. Johanan said: One, for instance, who is generally presumed to have obtained the field under consideration by robbery.9 R. Hisda said: Those like the people of a certain family we know who do not shrink from committing murder to extort money.10
Our Rabbis taught: A craftsman has no hazakah, but if he abandons his trade he has hazakah.11 A metayer has no hazakah, but if he ceases to be a metayer he has hazakah. A son who leaves [his father's roof]12 and a woman when divorced are on the same footing as strangers [in relation to the father or husband].13 [Why mention this?] It is true that for specifying the rule about the son who leaves his father's roof I can find a reason, since I might think that [we presume the father] to have tacitly consented [to his occupying the land],14 but now I know that this is not so. But that the divorced woman [becomes a stranger to her former husband]15 is surely self-evident? - No. The rule is required
(1) קבלן lit., 'receiver': a man who receives money from a lender to convey to a borrower on condition that the lender may recover from either at his option. The 'areb (surety), on the other hand becomes liable only if the borrower has failed to pay.
(2) I.e., both medium and inferior quality. The rule was that a creditor was entitled to recover from land of medium quality (v. B.K. 7b).
(3) If the borrower's medium-quality land is claimed and he loses his case, then the creditor will certainly come on to the go-between for his money, whereas if he keeps his land the creditor still has the choice of distraining either on him or on the go-between. Hence the go-between has an interest in the borrower keeping his land, and therefore must not testify on his behalf.
(4) If the father dies and he inherits him.
(5) Because their title is no better than their father's.
(6) E.g., if they plead. 'I bought it from the claimant.'
(7) Tosaf. points out that in such a case there is no need of hazakah, and therefore reads, 'where they (the various sons) declare: In our presence etc.
(8) The officer who imposed compulsory service or socage on the inhabitants.
(9) And therefore he can have no hazakah in this field, but he may have it in other fields.
(10) Hence people are afraid to protest against their occupation of their fields, and the occupation therefore confers no hazakah.
(11) I.e., in articles which were entrusted to him while he was still a craftsman, if he keeps them for an unusual length of time.
(12) E.g., to marry.
(13) V. Supra p. 281 where it is laid down that a father has no hazakah in the property of his son nor a husband in the property of his wife, and vice versa.
(14) And therefore he made no protest, but this does not constitute any hazakah for the son.
(15) Since they presumably are hostile to each other, and therefore are not likely to have allowed their land to be occupied by the other without protest.
Talmud - Mas. Baba Bathra 47b
to define the position of the woman who is both divorced and not divorced,1 on account of the dictum of R. Zera, who said in the name of R. Jeremiah b. Abba, who had it from Samuel, that wherever a woman was described by the Sages as being divorced and yet not divorced, the husband is still responsible for her maintenance.2
R. Nahman said: Huna has informed me that if any one of the classes [mentioned above]3 brings a proof [that his title to the field is valid].4 we accept the proof and confirm their title to the land.5 If, however, a robber adduces proof.6 we do not accept it and we do not confirm his title to the land. What has he [R. Huna] told us [in this latter clause]? We already know as much from the following Mishnah: 'If a man buys a field from the sicaricon7 and then buys it again8 from the original owner, the purchase is void.' - R. Huna meant to dispute the opinion of Rab, who said [in reference to this statement:] 'This rule was only meant to apply in such a case where the original owner merely said to the purchaser. Go and occupy the field and become the owner; but if he gave him a written deed, then the purchaser acquires ownership.'9 He [R. Huna] therefore tells us that the right opinion is that of Samuel, who said that even [if the original owner gives the purchaser] a written deed, [the latter does not acquire ownership: he] only [does so] if the original owner gives him a lien on the rest of his property.10
R. Bibi quoted R. Nahman as adding to the statement [which he had made in the name of R. Huna]: Though the robber has no title to the land [which he has forcibly taken], he has a title to the money [which he may have given in consideration of it].11 And this is only the case if witnesses testify: We saw him counting out the money [to the original owner]. but if they merely testify: We heard the original owner admit to him [that he had received money], the robber cannot recover it, for the reason given by R. Kahana, that if he had not made this admission to him the other would have handed him and his ass over to the town prefect.12
R. Huna said: if a man consents to sell something through fear of physical violence13 the sale is valid. Why so? Because whenever a man sells, it is under compulsion.14 and even so his sale is valid. But should we not differentiate internal from external compulsion? - [We must] therefore [give another reason], as it has been taught:
(1) E.g., one to whom the husband has thrown a get, and it is not certain whether it landed nearer to her or to him. v. Git. 74a.
(2) We might think, therefore, but for the ruling above, that she can have no hazakah in her husband's property, as any land she may occupy was assigned to her for her maintenance.
(3) Viz., a craftsman, a metayer, and all the others who are specified as having no hazakah.
(4) A deed of sale or witnesses to the sale.
(5) This is an obvious statement, only made to lead up to what follows.
(6) E.g.. witnesses who testify that he bought the land or that the original owner admitted as much, but not that he handed over the money.
(7) Commonly taken to be a corruption of sicarii, non-Jewish brigands who infested Palestine after the war of Bar Cochba; more probably. However (v. Jast., s.v. סיקריקון) a corruption of Gr. **, the Imperial fiscus established In Palestine at that time. The Rabbis ordained that purchases of land from that source were null and void. V. Git. 55.
(8) I.e., obtains from him a deed of transfer, without, however, paying him money. Git. 55b.
(9) Because this shows apparently that the original owner acquiesces in the transfer and is not acting merely out of fear of the sicarius. R. Huna, however, declares the sale void even if the robber produces a deed.
(10) Because only then can we be sure that he acquiesces in the transfer.
(11) I.e., if the robber has given the owner money in payment of the field, when the latter recovers the field he must refund the money.
(12) The admission therefore is presumably false.
(13) Lit., 'If they hang him and he sells.'
(14) By shortage of money.
Talmud - Mas. Baba Bathra 48a
[From the superfluous words], he shall offer it,1 we learn that a man can be forced to bring an [offering which he has vowed]. Does this mean, even in his own despite? - [This cannot be] because it says. Of his own free will.2 How then [are we to say]? Force is applied to him until he says, 'I consent.'3 But perhaps there is a special reason in this case, viz. that he may be well satisfied [to do so retrospectively], so as to have atonement made for his sins?4 - We must therefore [look for the reason in] the next passage [of the Baraitha quoted]: 'Similarly in the case of divorces, [where the Rabbis have said that the husband can be forced to give a divorce]5 we say [that what is meant is that] force is applied to him till he says, I consent.' But there too perhaps there is a special reason, viz. that it is a religious duty to listen to the word of the Sages?6 - What we must say therefore is that it is reasonable to suppose that under the pressure he really made up his mind to sell.7
Rab Judah questioned this [on the ground of the following Mishnah]: 'A get [bill of divorce] extorted by pressure applied by an Israelite8 is valid, but if the pressure is applied by a non-Jew9 It is invalid. A non-Jew also, however, may be commissioned [by the Beth din] to flog the husband and say to him, Do what the Israelite10 bids you.'11 Now why [should the get be invalid if extorted by the non-Jew]? Cannot we say that in that case also the man makes up his mind under pressure to grant the divorce?12 - This rule must be understood in the light of the statement made by R. Mesharsheya regarding it: According to the Torah itself, the get is valid even if extorted by a non-Jew, and the reason why the Rabbis [on their own authority] declared it invalid was so as not to give an opportunity to any Jewish woman to keep company with a non-Jew and so release herself from her husband.13
R. Hamnuna questioned [the rule on the ground of the following Mishnah]: 'If a man buys a field from a sicarius14 and then buys it again from the original owner, the purchase is void.'15 Why so? Cannot we say here too that under pressure the owner makes up his mind to sell [the field]? - We must understand this statement in the light of the gloss added by Rab: This rule was meant to apply only if the owner [merely] said to the purchaser, Go and take possession and acquire ownership, but if he gives him a written deed, he becomes the legal owner.16 But if we take the view of Samuel, that even if he gives him a deed he does not become the owner, what are we to reply [to R. Hamnuna]? - Samuel admits [that the sale is valid] if the purchaser actually pays the owner. But if we take the view of R. Nahman as completed by the statement of R. Bibi, that though the robber has no title to the land he has a title to the payment he made,17 what reply can be made [by R. Huna]? - R. Bibi adduced a mere statement,18 and such an opinion R. Huna did not feel bound to accept.19
Raba said: The law is that if a man sells a thing under pressure of physical violence, the sale is valid. This is only the case, however,
(1) Lev. 1,3: If his oblation be a burnt offering . . . he shall offer it a male without blemish; he shall offer it at the door etc.
(2) A possible rendering of the word lirzono (E.V. that he nay be accepted).
(3) This shows that if a man says 'I consent' under duress, the consent is valid.
(4) By bringing the offering. Hence we cannot reason from the offering to the sale.
(5) E.g., if he suffers from a loathsome disease.
(6) Viz., to their injunction to him to grant a divorce. Hence we cannot reason from divorce to sale.
(7) I.e., make a complete transfer, since we may well assume that he is now content as after all he loses nothing.
(8) I.e., a Jewish court.
(9) I.e., a non.Jewish court.
(10) I.e., the Rabbis who commission the non-Jew to flog the husband.
(11) Git. 88b.
(12) Because when all is said and done he may be glad to get rid of a wife who hates him.
(13) By inducing the non-Jew to go and extort a get from him.
(14) V. supra p. 199, n. 6.
(15) Git. 55b.
(16) V. supra p. 199, n. 8.
(17) Which shows that a proof brought by a robber is valid.
(18) I.e., the individual opinion of an Amora.
(19) Whereas if R. Bibi had been able to quote a Mishnah or a Baraitha, R. Huna would have felt constrained to bow to it.
Talmud - Mas. Baba Bathra 48b
if he is forced to sell 'a' field,1 but if he is forced to sell 'this'2 field, it is not valid. And again even if he is forced to sell 'this' field, the sale is not valid only if he has not counted out the money [received in payment], but if he does count out the money, the sale is valid.3 And again, [even in the case of 'this' field and even if he did not count out the money] the sale is not valid only if it was not possible for him to wriggle out of it,4 but if he did have a chance to wriggle out of it [and did not do so], then it is valid. [In spite, however, of this statement of Raba,] the accepted ruling is that in all these cases the sale is valid, even in the case of 'this' field, for the betrothal of a woman is analogous to the buying of 'this' field,5 and yet Amemar6 has laid down that if a woman consents to betroth herself under pressure of physical violence, the betrothal is valid. Mar son of R. Ashi, however, said: In the case of the woman the betrothal is certainly not valid; he treated the woman cavalierly7 and therefore the Rabbis treat him cavalierly and nullify his betrothal. Rabina said to R. Ashi: We can understand the Rabbis doing this if he betrothed her with money,8 but if he betrothed her by means of intercourse, how can they nullify the act?9 - He replied: The Rabbis declared his intercourse to be fornication.
One Taba10 tied a certain Papi to a tree11 [and kept him there] till he sold [his field to him]. Subsequently Rabbah b. Bar Hanah signed as a witness both to a moda'ah12 [issued by Papi] and to a deed of sale [of the field]. R. Huna [on hearing of it] said: He who signed the moda'ah acted quite properly and he who signed the deed of sale acted quite properly. How can both be right?13 If [it was right to sign] the moda'ah it was not [right to sign] the deed of sale, and if [it was right to sign] the deed of sale it was not [right to sign] the moda'ah? - What he [R. Huna] meant was this: Had it not been for the moda'ah, the one who signed the deed of sale would have acted rightly.14 R. Huna is thus consistent with the opinion expressed by him [elsewhere]. For R. Huna said that a sale extorted by physical violence is valid. But this is not so,15 seeing that R. Nahman has said: If the witnesses [to a bond16 ] say [subsequently], We only wrote [the bond under cover of] an amanah,17 their word is not
(1) I.e., if he is called upon merely to sell one of his fields, and is allowed to choose which, because in that case we can say that the sale is not unwelcome to him.
(2) I.e., one which his torturers specify, and which perhaps he particularly wished to keep for himself.
(3) Because by the act of counting out the money he shows that he is satisfied with the transaction.
(4) E.g., by saying to the other 'wait till tomorrow' or 'wait till my wife comes' (Rashb.).
(5) Because the woman may be regarded as selling herself to the betrother, who is intent on her alone.
(6) V.l. 'A master said'.
(7) Lit., 'not as it beseems'.
(8) Betrothal could be effected in three ways - by a money gift, by written deed, and by actual intercourse (Kid. ad init.).
(9) If he gave her money, they can declare the money common property, so that the gift was no gift, but they cannot say that the intercourse was no intercourse.
(10) A notorious ruffian.
(11) According to another rendering, 'Tied Papi up on account of an artichoke (to make him sell it).' V. Levy, s.v. כינרא
(12) Lit., 'notification': a declaration by a person about to make a sale that the sale is made under duress and that he intends to claim the thing sold as soon as possible. V. supra 40a.
(13) Lit., 'What is your desire'?
(14) But Rabbah b. Bar Hana, having signed the moda'ah, had no right to sign the bill of sale, since he had already in advance declared it to be invalid.
(15) I.e., the moda'ah could not really invalidate the bill of sale.
(16) Given by a borrower to a lender.
(17) Lit., 'our words were only an amanah' (lit., 'assurance'). An amanah was an assurance given to a debtor who signed a bond without receiving money that the creditor would not enforce it unless he actually lent him the money.
Talmud - Mas. Baba Bathra 49a
accepted. Also if the witnesses to a deed [of sale] say, We only wrote [under reservation of] a moda'ah1 their word is not accepted!2 - This is the case where they make a verbal statement to this effect, because a verbal statement cannot invalidate a written deed, but if they write a deed,3 then one deed can invalidate another.
The preceding text states that R. Nahman said: If the witnesses [to a bond] say, We only wrote it [under cover of] an amanah, their word is not accepted, and if the witnesses [to a deed] say, We wrote [it under the reservation of] a moda'ah, their word is not accepted. Mar son of R. Ashi, however, says that if they say, We only wrote [it] under cover of an amanah, their word is not accepted, but if they say, We wrote [under the reservation of] a moda'ah, their word is accepted. The reason is that it is proper to commit to writing a moda'ah, but it is not proper to commit to writing an amanah.4
THE HUSBAND HAS NO HAZAKAH IN THE PROPERTY OF HIS WIFE. Surely this is self-evident? Since he has a right to the produce [of the wife's field,5 therefore, however long he occupies it we say that] he is merely taking the produce?6 - The rule required to be stated for the case in which he has made a written declaration that he has no right or claim to her property.7 But suppose he has done so, what difference does it make, seeing that it has been taught, If a man says to another, I have no right or claim to this field, I have no concern in it,I totally dissociate myself from it, his words are of no effect?8 - In the school of R. Jannai the answer was given that the Mishnah here [is referring to the case] where the husband made this declaration to the wife while she was still only betrothed to him; [and such a declaration would be valid] in virtue of the dictum of R. Kahana
(1) I.e., before signing the deed, we ascertained that the seller was selling under duress and intended to annul the sale.
(2) And the bond or deed of sale is still valid.
(3) As here, where the moda'ah was recorded in writing before the sale took place.
(4) An amanah was looked upon by the Rabbis as contrary to equity, and they therefore denounced anyone who kept a bond of this kind in his house for twenty-four hours. Hence if the witnesses say they wrote a bond of amanah, their word is not accepted, since a man is not allowed to condemn himself. To write a moda'ah, however, is perfectly legitimate, and therefore if they say they signed the deed of sale under reservation of a moda'ah, their word is accepted.
(5) Even though the wife remains legal owner of the field itself.
(6) And he cannot plead that she sold it to him.
(7) And therefore if we see him in occupation of a field that was hers, the presumption is that he bought it.
(8) V. Supra 43a.
Talmud - Mas. Baba Bathra 49b
that a man is at liberty to renounce beforehand1 an inheritance which is likely to accrue to him from another place;2 and this rule again is based on the dictum of Raba, that if anyone says, I do not desire to avail myself of a regulation of the Rabbis of this kind, we comply with his desire.3 To what was Raba referring4 when he said 'of this kind'? - He was referring to the statement made by R. Huna in the name of Rab: A woman is at liberty to say to her husband, You need not keep me and I will not work for you.5
[Since the Mishnah says that a husband has no hazakah in the property of his wife, we infer that] if he has proof [that she sold it to him],6 the sale is effective. [Yet why should this be?] Cannot she say [in this case also], I merely wished to oblige my husband?7 Have we not learnt: If a man buys [a field] from the husband8 and then buys it again from the wife, the purchase [from the wife] Is void?9 This shows that she can say: I merely consented in order to oblige my husband, and cannot she say here also that she merely wished to oblige her husband? - The truth is that this [Mishnah] has been qualified by the gloss of Rabbah son of R. Huna: The rule really required to be stated in reference to those three fields [that are specially allotted to her]10 - one that the husband inserted In the kethubah,11
(1) Lit., 'to stipulate'.
(2) I.e., from a distant relative, to whom he becomes next-of-kin according to the regulations of the Rabbis. But inheritance from a next-of-kin mentioned in the Torah cannot be so renounced.
(3) The regulation that a man should become heir to a distant relative in certain cases was made for his own benefit, and therefore he is at liberty to reject it. The statement of R. Kahana is adduced to show that the formula 'I have no right or claim to this property' is effective when applied to property which will hereafter accrue to a person but is not yet in his hands, e.g., the produce of the field of the betrothed woman, which will only accrue to the husband after marriage.
(4) I.e., what subject was being discussed in the Beth Hamidrash.
(5) It was a regulation of the Rabbis that a husband should maintain his wife in return for her labour. As this regulation was made on behalf of the wife, she was not bound to accept it.
(6) E.g., a document or witnesses.
(7) By consenting to the sale, but I did not really wish to part with the field.
(8) In order to release himself from the lien which the wife has on all her husband's property for the recovery of her kethubah.
(9) Git. 55b.
(10) If she refuses to sell these, the husband cannot reasonably take offence, and therefore but for the rule just stated we might think that if she does give her consent the sale is valid. - The argument runs on, and the reply to the question comes at the end.
(11) As a special security for her kethubah, apart from the general security effected on the whole of his property.
Talmud - Mas. Baba Bathra 50a
a second, the one assigned to her as special surety for her kethubah,1 and a third which she had brought him [as marriage] dowry, and for the money value of which he made himself responsible [to her].2 Now what property does this exclude from the rule [that the purchase is void]? Shall we say it is to exclude the remainder of the husband's property?3 [Hardly]; for in regard to this [she would] certainly [say that she did it to oblige her husband], since otherwise he might, fall out with her and say to her, 'You have your eye on a divorce or on my death.'4 The property excluded5 must therefore be that of which the husband has the usufruct. But [how can this be], seeing that Amemar has said: If husband and wife sell the property of which he has the usufruct,6 their action is null and void?7 - Amemar was speaking of the case where the husband sold it and then died, in which case she can recover it,8 or where she sold it and died,in which case he can come and recover it,9 (according to the regulation of the Sages recorded by R. Jose b. Haninah, who said: It was enacted In Usha10 that if a woman sold the property of which the husband had the usufruct and then died, the husband could recover it from the purchaser).11 Where, however, they both sold it [together] to a third party or if the wife sold it to the husband, the sale is valid.12 Alternatively, I may say that Amemar based his ruling13 on the view expressed by R. Eliezer.14 For it has been taught: 'If a man sells his slave but stipulates [with the purchaser] that he shall continue to serve him for thirty days, R. Meir says that the rule of "one or two days"15 applies to the first [the original owner] because the slave is still "under" him, and it does not apply to the second because the slave is not "under" him.'16 He [R. Meir], holds that possession of the increment is on a par with possession of the principal.17 'R. Judah says that the rule of 'one or two days' applies to the second [the purchaser], because the slave is "his money", but not to the first, because he is not "his money".' His opinion is that the possession of the increment17 is not on a par with possession of the principal. 'R. Jose says
(1) After the wedding. On this also she places special reliance, as it has been assigned to her with full formalities in the presence of witnesses.
(2) Inserting a stipulation to that effect in the kethubah. This is the so-called 'property of the iron sheep' (Tzon barzel), which the wife makes over to the husband from her dowry, on condition that the husband is responsible to her for its full money value, whether he makes a profit or a loss on the transaction. [The term tzon barzel has a parallel in Roman law, pecus ferreum, and is not limited to a specific property arrangement between husband and wife but applies to every form of conveyance of property on a basis of tenancy and possession, v. Epstein, M., The Jewish Marriage Contract, p. 91, n. 12.]
(3) Which is pledged to her as security for her kethubah.
(4) If the husband sells any part of his property which is not so particularly mortgaged to her, and she refuses to confirm the sale, he may accuse her of desiring this part to remain in his possession because she is looking forward to his death or a divorce from him and is loth to part with a security for her kethubah. Thus she has a motive for consenting, so as not to estrange her husband. Hence this is obviously not the kind of property excluded from the rule stated.
(5) I.e., the purchase of which is valid if it is bought first from the husband and then from the wife.
(6) The so-called 'property of plucking' (mulug), which belonged to the wife but of which the husband had the usufruct without responsibility for loss or deterioration. [The term mulug is derived from Aram. מלג to pluck, Aruch, or from Lat. mulgere, 'to milk'. V. Epstein, M., op. cit, p. 92. n. 16.]
(7) The question then remains, in spite of Rabah R. son of Huna's gloss. what property is excluded from the rule?
(8) Because he had no right to sell it.
(9) We must therefore understand Amemar to mean, 'If the husband or the wife sells it'.
(10) V. p. 139, n. 1. [On the enactments of Usha, Takkanath Usha, v. Epstein, op. cit., 110ff.]
(11) The husband being in the position of a 'prior purchaser'. V. B.K. 88.
(12) Hence (to revert to the original question), if the wife sells to her husband the so-called 'property of plucking', the sale is valid, and she cannot plead, 'I did it to oblige my husband'.
(13) That if the wife or the husband sold the 'property of plucking' the sale becomes void on the death of the wife or husband respectively. So R. Gersh. Rashb. refers it to the ruling that if both husband and wife sell, their action is void, but, as will be seen, R. Eliezer's dictum by no means bears this out. V. infra p. 208, n. 2.
(14) And not on the regulation of the Sages.
(15) Ex. XXI, 20, 21: If a man smite his servant with a rod and he die under his hand, he shall surely be punished. Nevertheless, if he continue a day or two he shall not be punished, for he is his money.
(16) If the original owner smites him during this time and he survives a day or two, he is not guilty of murder, but if the purchaser smites him, even if he survives a day or two, he is guilty of murder. B.K. 50a.
(17) The 'increment' here is the labour of the slave and the 'principal' is the slave himself. R. Meir holds that for the purposes of this law the one who disposes of the labour of the slave is in the position of owner.
Talmud - Mas. Baba Bathra 50b
that the rule of one or two days applies to both of them, to the original owner because the slave is still "under" him, and to the purchaser because he is "his money".' R. Jose is uncertain whether possession of the increment is on a par with possession of the principal or not, and where there is a doubt whether capital punishment should be inflicted the more lenient view is always taken.1 'R. Eliezer says that the rule of a day or two days applies to neither; it does not apply to the purchaser because the slave is not 'under' him, nor to the original owner, because he is not 'his Money'.'2 What, said Raba, is R. Eliezer's reason? Scripture says, He shall not be punished, for he is his money, which implies that he must be entirely his own.3
NOR HAS A HUSBAND HAZAKAH IN THE PROPERTY OF HIS WIFE. But has not Rab said: It is necessary for a married woman to protest?4 Now, against whom [does he mean]? Shall I say against [occupation by] an outsider? Did not Rab lay down that one cannot obtain hazakah in the property of a married woman? It must therefore mean against [occupation by] the husband?5 - Said Raba: It does indeed mean against [occupation by] the husband, but [Rab refers to the case where] for instance he dug in the field pits, ditches or caves.6 But has not R. Nahman said in the name of Rabbah b. Abbuha: There is no hazakah where damage is inflicted? - This should be read The [ordinary] rule of hazakah does not apply7 where damage is inflicted.8
(Alternatively I may meet this objection by pointing out that R. Meri gave smoke as an instance of the damage referred to and R. Zebid a privy].9 R. Joseph said: Rab in truth [meant his dictum10 to apply] to [occupation by] outsiders,11 and the case [he had in mind] was where a man had had the use of the property for a time in the lifetime of the husband and for three years after his death. [In that case,] seeing that he could put forward the plea, I bought it from you [the wife], if he merely pleads, You sold it to him and he sold it to me, his word is accepted.12
The text above states that Rab said that 'one cannot obtain hazakah in the property of a married woman.'
(1) E.g., where the question is whether the man who smote the slave shall be condemned to death.
(2) This can be taken by Amemar as a proof that the wife cannot sell without the husband. It could hardly, however, be taken by him as a proof that where both agree to sell, their action is still void. V. supra p. 207, n. 6.
(3) Raba stresses the word 'his'.
(4) If she desires to prevent someone who has occupied her field from obtaining hazakah in it.
(5) This shows that Rab holds that a husband can claim has hazakah in the property of his wife.
(6) Thereby spoiling the field, which he was not entitled to do unless he was its legal owner. Hence if his wife does not protest against such action, it gives him hazakah.
(7) Lit., 'There is no rule of hazakah'.
(8) The ordinary rule is that to confer hazakah three years' possession is required, but if the occupier is allowed to damage the field without protest from the owner, this gives him hazakah at once.
(9) V. supra 23a. Other damage, however, such as digging pits, confers hazakah even in the case of a wife's property.
(10) That it is necessary for a married woman to protest.
(11) And therefore there is no contradiction between him and the Mishnah.
(12) Hence if she does not want him to obtain hazakah, she must protest in time.